R v Taua [2024] SBHC 57; HCSI-CRC 385 of 2022 (7 June 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Taua
Citation:
Date of decision:	7 June 2024
Parties:	Rex v George Harrison Taua
Date of hearing:	1 June 2024
Court file number(s):	385 of 2022
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	(i) Defendant is sentenced to 8 years imprisonment on Count 1. (ii) Defendant is sentenced to 9 years imprisonment on Count 2. (iii) Sentence on Count 1 is to be served concurrently with the sentence on Count 2 (means 9 years imprisonment) and not 17 years. (iv) 3 months pre-trial custody is further allowed for deduction on the 9 years imposed.
Representation:	Mr Auga and Ms Oroi for the Crown Mr Brook for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S 139 (1) (b), S 136F and S 139
Cases cited:	R v Sinatau [2023] SBCA 38, R v Ba'ai [2023] SBCA 9, R v Ramaia [2021] SBHC 96, Regina v Bonuga [2014] SBCA 22, Bade v R [2023] SBCA 39,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 385 of 2022

REX

V

GEORGE HARRISON TAUA

Date of Hearing: 1 June 2024
Date of Sentence: 7 June 2024

Counsel: Mr Auga and Ms Oroi for the Crown
Counsel: Mr Brook for the Defendant

SENTENCE

1. Mr George Harrison Taua is the accused. Mr Taua comes from Mwaniwaro village, Arosi 1 Makira/Ulawa Province. Mr Taua is charged with 2 counts of sexual intercourse with a child under 15 years of age, by amended information filed on 1/06/2024. The 2 counts were brought under Section 139 (1) (b) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences Act) 2016 (No 3 of 2016). I will hereafter refer to the amended Act as the 2016 Act. Section 139 (1) (b) of the 2016 Act reads: -
   • “139 (1) A person commits an offence if the person has sexual intercourse with a child who is under 15 years of age.
   • Maximum penalties:
   • (a)...
   • (b) If the child is between 13 and 15 years of age – 15 years imprisonment”.

Count 1

2. The statement of offence in Count 1 states that Mr Taua is charged with sexual intercourse with a child under 15 years of age contrary to Section 139 (1) (b) of the 2016 Act. Particulars of offence alleged that, Mr Taua of Mwaniwaro village Arosi 1, Makira Ulawa Province, on 18/2/2018 did have sexual intercourse with a child, under the age of 15 years, namely Fiona Lina Taro who was 14 years old by penetrating his penis into her vagina.

Count 2

3. The statement of offence and particulars of offence repeats exactly the same wordings as in Count 1, except that the date of offending in Count 2 was 20/2/2018. In both Counts, the Crown alleged penial sexual intercourse with a child under 15 years.
4. Mr Taua was arraigned on the 1/6/2024. He entered a guilty plea to both charges, premised on summary of agreed facts filed the same day. Court will adopt the summary agreed facts in full as follows: -
   1. Complainant is Fiona Lina Taro. She is from Waita village, West Bauro, Makira Ulawa Province. She was 14 years old at the time of the offending.
   2. Defendant is George Harrison Taua. He is from Mwaniwaro village, Arosi 1 Makira Ulawa Province. He was 25 years old at the time of the offending.
   3. Defendant is related to the complainant as her mother’s cousin brother.
   4. Defendant is charged with 2 Counts of sexual intercourse with child under 15 years contrary to Section 139 (1) (b) of the Act 2016.
   5. Defendant was arrested on 20 February 2018 at his home village in Mwaniwaro. He was remanded and charged.
   6. Defendant is currently on bail.

Incident 1

1. On 17 February 2018 at a time around 1:00 am Mr Taua took the complainant to Waita beach from her house in the village. He took her by telling her that it was his wife (her aunt) that wanted to see her.
2. When they got to a big Koilo tree on the way, Mr Taua told her to lay down on the sand at the beach.
3. Complainant laid down and cried.
4. Defendant pulled the complainant’s skirt up to her belly and took out her underwear. He did not take out her shirt.
5. Defendant pulled her two legs and hands wide apart then laid on top her and pushed his finger into her vagina. Then he pushed his penis into her vagina. He also licked her vagina.
6. After he had finished, Mr Taua asked the victim to accompany him to his house. She refused and went back to her house.

Incident 2

1. From 18 to 20 February 2018, the victim stayed at the defendant’s house. The defendant’s wife was away during this time. The defendant prevented the victim from leaving his house.
2. On the morning of 20 February 2018, the complainant was in the room of the defendant’s house.
3. The victim was lying down when the defendant entered. He turned on the music and told the victim he wanted to have sex.
4. The complainant was lying in bed and was listening to the music.
5. Defendant and the complainant were aware that the complainant’s relatives were looking for her.
6. Defendant laid on top of her, spread her legs apart and pushed a finger into her vagina.
7. Defendant also pushed his penis into her vagina and made sexual motions by moving his ass up and down. He ejaculated inside her vagina.
8. The victim then escaped through the window of the defendant’s room.
9. Later that morning, the complainant’s parents arrived and accused the defendant for keeping their daughter with him at his house. They had an argument and the defendant was quite angry.

Serious or prevalent or higher scale offending

5. Court will now determine the appropriate punishment. Sentencing and mitigating submissions followed the taking of plea on 1/6/2024. This is a serious offence under the 2016 Act, for it carries a maximum penalty of 15 years imprisonment. Facts telling me that this is serious offending at the higher scale are – position of trust breached, repetitive offending, penial penetration and victim at a young age. The objective of the 2016 Act was to protect women and girls from sexual abuse in the domestic circle (amongst relatives). As long as a female child is under 15 years, the 2016 Act prohibits sexual intercourse or abuse with her. The 2016 Act was enacted to protect the virginity and sexual purity of young girls from men who may want to exert their sexual desires on young and vulnerable girls, especially men in a domestic relationship to their victims. The 2016 Act was a legislative remedy to address a prevalent issue of sexual abuse of women and girls in the country. In the courts, we continue to see the prevalence with sexual abuse cases occupying the majority of court circuit cases each year.

Starting point sentence

6. The starting point sentence for sexual intercourse with a child under 15 in a non-contested matter is 8 years according to the binding Court of Appeal decision in Sinatau (2023). Sinatau specifically required as a sentencing guideline that, the starting point sentence for sexual offences under Section 136 F and Section 139 of the 2016 Act (rape, sexual intercourse or indecent act against children) is 8 years in a non-contested matter. This is for cases where the victim is under the age of consent or for a child victim who is under 15 years. I will set the starting point sentence here at 8 years because this is a non-contested matter.
7. Court will reject submissions by defence that the starting point sentence should be at 3/4 years according to another binding Court of Appeal case of Ba’ai (2023). Defence argued that this case, like the Ba’ai case, is at the lower scale of offending. Hence it should attract a lower start point. I cannot rationalise with defence submission. Sinatau involved penial penetration against one of the 2 sister victims (10 years old girl). Ba’ai involved a 13 years old victim and the defendant touched and licked her vagina. This case has different set of facts. This case is at the higher end of the scale because it is penial penetration, offending was repeated twice and it involved a relative (position of trust) taking the victim away from her house and keeping the victim like a slave for sex. Facts say that the parents went looking for the victim because she was missing from their house. And then they found out that her very own blood related uncle, was keeping her in his house to have sex with her. And then he got angry. That is how insensitive the accused was.
8. After the first incident, defendant also asked the victim to accompany him to his house. Victim refused. He must have insisted subsequently because he finally achieved his intent and took the victim to his house to treat her like his wife. Parent of the victim went to defendant’s house and he argued with them. In custom this is serious because the defendant is a relative (uncle) of the victim. This case and Sinatau are similar because the defendant in both cases are related to the victims (position of trust). Both involved penial penetration. This case is a repetitive offending. And so rightly the starting point sentence should be 8 years being a non-contested matter.

Aggravating factors

9. Then I will inflate the starting point sentence due to the presence of serious aggravating factors. The serious aggravating factors justifying the uplifting of the starting point are: -
   • (i) Disparity of age - Defendant was 25 years in 2018. Victim was 14 years old in 2018. An age difference of about 10 years. As an older person (uncle) there is an expectation for the defendant to be responsible and accountable in protecting the victim from this type of sexual offending (R v Ramaia [2021] SBHC 96).
   • (ii) Pre-planning – As a married man and being the uncle of the victim, I could see a lot of pre-planning in this case. For instance, defendant knew that his wife was away. He went and tricked the victim saying his wife wants to see victim at his house. This is what uncles normally do in the village and any innocent and vulnerable young girl would accompany her uncle to see their aunt in good faith. Instead it was a trick the defendant hatched to entice the victim to go with him. Then he first had sex with his niece under the Koilo tree and second, he wanted to take her to his house with evil sexual intent (implied) but she refused.
   • (iii) Repetitive offending – Defendant had sex with the victim twice. One risky factor in such situation is the victim could get pregnant. And that would ruin the victim’s life in a longer term. Repeating as in this case also shows the uncaring attitude, behaviour and thoughts of a relative adult person like the defendant. He had the chance to think and refrain from his filthy plans. Yet he chose not to.
   • (iv) Isolated spot and at night – On Count 1, I noted that the defendant took the victim to an isolated spot at night. Under the Koilo tree at the sea side, at 1:00 am in the morning defendant had sexual intercourse with the victim. Isolated spot and at night meant the victim cannot access help and the defendant was at liberty to achieve his evil sexual intent without interruption. Defendant had unrestricted space and time for sexual slaughtering.
   • (v) Psychological harm – It is now well settled that offending of this nature causes long term effects such as trauma and psychological harm on victims. And the Courts must take judicial notice of these long-term impacts, despite lack of professional medical evidence (Bonuga 2014; Court of Appeal).
   • (vi) Abuse of position of trust – At custom this may be the worst aggravating factor. Defendant is the uncle of the victim. In custom and in the village, there is a clear and higher expectation of a trust that a male relative ought to take care and protect his young niece from sexual abuse. Defendant breached that position of trust when he turned on his niece to satisfy his sexual gratification.
10. For all of the above 6 aggravating factors combined, I will lift the starting point sentence upwards by 7 years (1.16 years for each aggravating factor). Inflation due to aggravating factors should be in years and not merely in weeks and months (Bade, Court of Appeal 2023). That will bring me to 15 years total head sentence before mitigation.

Mitigating factors

11. Then the defendant is entitled to mitigating factors to reduce the total head sentence downwards. First one is early guilty plea. Early guilty plea benefits all stakeholders. For the Court it saves trial time. For the victim it saves her from having the ordeal of taking the traumatic witness box to recite her sexual abuse ordeal. For the defendant it shows remorse and taking responsibility for his actions. But I take into account that this is not a real and genuine early guilty plea. Defendant only pleaded guilty after successfully negotiating a reduced charge with the prosecution, on the day trial was to start. But the reduced charges mirror closely, the original charges, which the defendant pleaded not guilty to earlier before Judge Bird in year 2022. So, whilst a 30% reduction will normally be allowed and in this case that will come to 4 years and 6 months, I will allow 3 years only. First time offender with no previous conviction, I will allow 1-year reduction. For compensation and delay I will deduct 1 year. There is no evidence of compensation, but I note that in the village, this is the common way to resolve disputes. This is a case where the aggravating factors far outweighed the mitigating factors. Mitigating factors defence submit were 6 years on bail without offending (good prospect for rehabilitation), faithfully attending court hearings and cooperation with the police are new to me, except rehabilitation. There is no case authority cited to say attendance at court hearing and cooperation with police are mitigating factors. I will nevertheless deduct 1 year for rehabilitation.

Final head sentence should be made consecutive or concurrent for multiple offences?

12. Court will come to the final head sentence of 9 years. This is for Count 2, because Count 2 repeats the offence in Count 1. Count 2 should attract a higher sentence term of 9 years because a repeated offence or harm occasioned on the same person is a serious aggravation, more so on a relative (defendant being in a position of trust to the victim). On Count 1, I will give a sentence of 8 years because the same aggravating and mitigating factors in Count 2 will still apply but reduced by 1 year, because of the absence in the distinction of repetitiveness. Sentence on Count 1 will run concurrently to the sentence on Count 2. Hence the defendant is sentenced to 9 years imprisonment. Crown and defence agreed on a concurrent sentence for this multiple offending. I do not have to elaborate further when an issue is non-contentious.

Conclusion and Orders

13. As I stand back and look at the sentence of 9 years, it is appropriate to impose such a concurrent sentence due to the serious aggravating factors mentioned above. And this being a multiple offending. I mentioned above that this is a case where the aggravating factors far outweighed the mitigating factors. The factors attracting considerable aggravation are breach of position of trust, sexual abuse on a young girl, repetitive offending and the defendant abducted and held the victim in detention and treated her like his wife in having sexual intercourse with her in a room in his house. A room in an uncle’s house should be a safe haven for a victim niece. Parliament remedied the prevalence of sexual abuse of women and girls through a legislative amendment in 2016, where new offences were created and increase in penalties were introduced. Parliament’s intent in curtailing a serious social sexual abuse issue was eminent in the 2016 Act. Court in turn must also give remedial sentencing response by imposing heavy deterrent custodial sentence terms. Court of Appeal continue to renounce the lenient attitude of lenient sentences imposed by the High Court for sexual offending under the 2016 Act. Court of Appeal time and again says this lenient attitude must stop.
14. Accordingly, orders of the Court are: -
    • (i) Defendant is sentenced to 8 years imprisonment on Count 1.
    • (ii) Defendant is sentenced to 9 years imprisonment on Count 2.
    • (iii) Sentence on Count 1 is to be served concurrently with the sentence on Count 2 (means 9 years imprisonment) and not 17 years.
    • (iv) 3 months pre-trial custody is further allowed for deduction on the 9 years imposed.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE