R v Fafale [2024] SBHC 7; HCSI-CRC 312 of 2023 (7 February 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Fafale
Citation:
Date of decision:	7 February 2024
Parties:	Rex v Drummond Fafale
Date of hearing:	1 November 2023
Court file number(s):	312 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. The Defendant was guilty on his own plea of guilty to the charge. 2. The Defendant should serve 7 ½ years in prison as final sentence. 3. The sentence starts to run from the date of reading of the sentence.
Representation:	Mrs P Waisanau for the Crown Mr S Weago for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 163 (1) (a) and 2 (a)
Cases cited:	Tii v R [2017] SBCA 6, Regina v Ramo [ 2013] SBCA 9, Bara v R [2018] SBCA 1, Pana v R [2013]SBCA 19, Rex v Pige [2023] SBHC 12

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 312 of 2023

REX

V

DRUMMOND FAFALE

Date of Hearing: 1 November 2023
Date of Sentence: 7 February 2024

Mrs P Waisanau for the Crown
Mr S Weago for the Defendant

SENTENCE AFTER PLEA OF GUILTY ENTERED

Faukona DCJ:
Brief Facts.

1. The Defendant Mr. Drummond Fafale was charged for one count of incest contrary to Section 163(1) (a) and 2 (a) of the Penal Code (Amendment) (Sexual Offence) Act 2016.
2. On arraignment on 4^th October 2023, the Defendant pleaded guilty to the charge.
3. The Defendant was 69 years old at the time of offending. The complainant is Miss Kelly Jenny who was 11 years old at the time of offending.
4. The defendant is the biological grandfather of the complainant.
5. The incident occurred on an unknown date in December 2022, at the defendant’s house at Kolomola Village, Hovikoilo ward, Isabel Province.
6. Little prior to the offending, the Complainant was playing with her cousin sisters when the Defendant called her to the house to have kumara soup.
7. She was then led into the house by the Defendant. When both were inside of the house, the Defendant locked the door and removed the complainant’s clothes. The Defendant then knelt down and licked her ass and vagina using his tongue.
8. Later the complainant’s cousin sisters were looking for her. They called out her name but the Defendant lied to them stating the complainant was not with him in the house.

Sentencing Principles.

9. In the case of Tii v R^[1] the Court of Appeal echoed in paragraph 21 that, “A sentence should be crafted to attain the goals of punishment, deterrence and rehabilitation”.
10. In Regina v Ramo ^{( [2])} the Court of Appeal stated at page 58 expressing that, “the sole criteria relevant to a determination of the upper limit of an appropriate sentence is that punishment fit the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determination of such appropriate sentence”.
11. The court further pointed out that “in order to determine the appropriate sentence to impose in a particular case, the court would consider the nature and the circumstances surrounding the commission of the offence...”
12. In the case of Bara v R ^([3])_, the Court Appeal stated in paragraph 15 and 16.
    • “15. With the appropriate guidance, where available, a sentencing judge should identify a starting point. From the starting point there will be adjustment to take into proper account factors which make the offending more serious (aggravating features) or serve to suggest that the sentence is too hush, often more related to the offender than the offence (mitigating features). This requires the Judge to set out what he regards as aggravating and mitigating when he intends to take them into account in the final sentence, a reason why he intends not take them into account”.
13. After identification of the aggravating and mitigating features and how they affect the starting point, reference should be made to the effect. If applicable, of any early guilty pleas. Where a discount is to be given that should be indicated. Where no discount is to be given a reason for that decision should also appear in remarks made in the sentencing. Equally where no allowance to be made for pre-sentence period of custody served relating to the offending before the court reason be given as well, see Tii v R.

Aggravating Features

14. I noted all the aggravating features in the submissions. There is age disparity. The Claimant was 11 years old and the Defendant her grandfather was 69 years old at the time of offending. Age differences if 58 years.
15. The age different draws conclusion that the offence is quite serious. A 11 years old child, is a human with very tender and vulnerable age. To experience her own grandfather interfered with her private parts is a new experience that she has to go along with. There may not be any evidence of emotional trauma but I have to take judicial notice of.
16. Further, and more, was when the news of such sexual indignity known to the people in their community. It definitely degraded the family and brought shame upon them. The worst effected was the victim. The emotional feeling may not linger for long, however, cannot be denied.
17. The Defendant must accept sole responsibility. He had brought about shame by breaching the law and custom. His age does not speak well of him. He cannot be trusted any more, nor relied on for security, leadership and care. He has abused that trust.
18. His wife is still alive. Because he cannot pick elsewhere to fulfil his evil ego, he did within the family.
19. What materialized was what emerged from his heart. He must have been dreaming of sexually abusing his granddaughter for some time. The right moment arrived so he took her into his own family house and sexually abused her.

Mitigating Features

20. First and foremost, the defendant has pleaded guilty to the charge at first available opportunity. I have to award him credit for that. His plea has finalized the case without a need for a trial proper.
21. He also expressed they have entered into a reconciliation ceremony to defuse and normalize the relationship between them as one family. I would accept the personal deeds of the defendant to mend the tarnished relationship. But rather uncertain whether the trust can be restored. It may take time. Now it’s only one year after the incident.
22. Further consideration has included the fact that the sexual offending was committed by way of cunnilingus. There is no evidence of force and injury done or noted.
23. The Defendant states he was remanded in custody since 20^th January 2023 and remained there until now. I take special consideration for that.

Starting point and Comparative Sentence

24. In the recent Court of Appeal Cases, the court has expressed concern and has drawn a line that only Court of Appeal sentencing criteria be considered and not the High Court.
25. In that instance the precedents submitted by the Defense Counsel appears to be as those from the High Court. However, there is no explanation as to which court but I can confidentially note because of very low sentences imposed for the same crime. Therefore, I must disregard those case precedents submitted.
26. In determining a starting point reference is hereby made to the case of Pana v Regina ^([4]), which the court suggest that in all but the most exceptional case, the sole fact that the child is below the age of consent should in itself bring the starting point to eight years. The age of the victim should be accounted for possible aggravating feature.
27. The maximum penalty for incest is life imprisonment, similar to defilement which Pana was charged for.
28. In Rex v Sinatau, the Court of Appeal affirmed the starting point for offending against children, as they have done in Bade v R. The court also affirms the statement they expressed in Pana case which have laid down the starting point for offences involving children under the age of consent in none contested matter, as 8 years.
29. The case of Rex v Pige ^([5]) also confirm that where a complainant is below the age of consent the starting point must always be 8 years.

Sentencing

30. With the above authority citations, the starting point in this case is 8 years. Having considered all the aggravating features including and in particular the victim was below the consenting age at the time of offending, I increase the starting point to 11 years, by adding three years.
31. What has induced my mind to reduce the sentence after considering the mitigating features is that the Defendant had pleaded guilty at the earliest opportunity. That indeed avoided the victim from appearing in court to reveal the odeal she had gone through, which she may have struggled to overcome. And the stigma that may overwhelm her mind as a child of molestation act.
32. Further to that I have considered other mitigating features as well.
33. This case must be distinguished from Pana’s case. The 11 ½ year’s sentence in that case are attributed to two rigorous charges.
34. Other considerations in the mitigating features considered is that there was no penetration of penis, no injury affected but the defendant had committed the offence by cunnilingus, sucking the anus and vagina of the victim. However the point still remain, it is serious because of the age of victim and the offender who is her grandfather.
35. I therefore, allow 2 ½ years for mitigation features, thus decrease to 8 ½ years.
36. The other consideration is the time spent in custody. Now its about 1 year. I am legally permitted to allow time spent in custody by further deducting 1 year from 8 ½ year. The sentence the Defendant to serve is 7 ½ years.
37. This sentence reflects the deterrence effect upon the defendant ensuring not to reoffend and a message to his community that anyone wish to follow the defendant will be dealt with likewise.
38. This is another case from Isabel Province. Child molestation and sexual abuse in the Province is rising at an alarming rate. It becomes prevalent. It has to be stopped somewhere or women and young girls and children will remain in fear without liberty to move around.

Order of the Court.

1. The Defendant was guilty on his own plea of guilty to the charge.
2. The Defendant should serve 7 ½ years in prison as final sentence.
3. The sentence starts to run from the date of reading of the sentence.

THE COURT
Hon. Justice Rex Faukona
Deputy Chief Justice

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^[1] [2017] SBCA 6; SICOA – CRAC 4 of 2016 ( 15 May 2017)
^[2] [2013] SBCA 9; CRAC 38 of 2012 (25 April 2013)
^[3] [2018] SBCA 1; SICOA 0 CRAC of 2017 (11 May 2018)
^[4] [2013] SBCA 19
^[5] [2023] SBCA 36, CRAC 9027 of 2023