R v Kaulafa [2024] SBHC 78; HCSI-CRC 291 of 2023 (9 August 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kaulafa
Citation:
Date of decision:	9 August 2024
Parties:	Rex v Philip Henry Kaulafa
Date of hearing:	30 April 2024
Court file number(s):	291 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. 4 years imprisonment for count 1 to run concurrent to 4 years imposed in Count 2. 2. Total sentence to serve is 4 years. 3. Number of months remanded in custody be deducted from 4 years.
Representation:	Mrs M. Cleven for the Crown Mr B Harunari for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016, S 142 (2), S 139 (2), S 139 (1)S 139 (2) (a)
Cases cited:	Bara v Reginam [2018] SBCA 10, Pana v R [2013] SBCA 19

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 291 of 2023

REX

V

PHILIP HENRY KAULAFA

Date of Submission: 30 April 2024
Date of Sentence: 9 August 2024

Mrs M Cleven for the Crown
Mr B Harunari for the Defendant

SENTENCE

FAUKONA, DCJ.
Introduction.

1. The Defendant, Mr. Philip Henry Kaulafa was charged for two counts of Persistent Sexual abuse of a child, contrary to section 142 (2) and section 139 (2) of the Penal Code, as amended by the Penal code (Amendment) (Sexual Offence) Act 2016.
2. The 1^st count contains four incidences and the 2^nd count contains three incidences.
3. The maximum penalty for the offence of Persistent Sexual abuse of a child as provided for under S. 142 (2) of the Penal Code as amended by the amendment Act 2016, is life imprisonment.
4. When all the incidences under Count 1 and Count 2 were read to the defendant on 26^th February 2024 he pleaded guilty to all of them.
5. The outstanding issue now is for the court to deliver the rightful sentences after written submissions were filed and orally made in Court on the 30^th April 2024.

Summary of facts.

6. The defendant Mr. Philip Kaulafa was 53 years old at the time of offence. He is in fact sexually abused two girls within the same period of time in February 2023.
7. The involvement of the two girls made it appropriate to have two counts. One count for each complainant.
8. The first complainant is Nevena Lordanis. She was 11 years old at the time of offending. The defendant is her step uncle.
9. The second complainant is Lilianie Suri. She was 11 years old at the time of offending. The defendant is her uncle.
10. There are four instances of indecent offending that occurred against the first complainant. And there are three instances of indecent offending against the second complainant.
11. Court 1:

First Incident.

1. The first incident of offending occurred on a date between 1^st February 2023 and 28^th February 2023. It occurred on the ladder of their dwelling house where the defendant used his right hand once to whip the complainant Lodanis’s buttock in a sexual manner.

Second Incident.

2. On another date between the 1^st of February 2023 and 28^th February 2023, different to the first incident, the defendant grabbed the same complainant’s breast with his hand. This occurred at a hammock at Mbokonavera 2. The complainant was fully dressed at that particular time.

Third Incident.

3. On another date between the 1^st of February 2023 and the 28^th of February 2023, different from incidents one and two, the defendant used his right-hand finger to touch the complainant Lordanis’s vagina. At that time the complainant was fully dressed.

Fourth Incident.

4. On another date between 1^st of February 2023 and 28^th of February 2023, different from incident one, two and three, the defendant asked the complainant Lordanis to hold his penis of which she refused.
12. Court 2.

First incident.

1. On and unknown date between 1 of February 2023 and 28^th February 2023, the defendant told the complainant, Liliane Suri that she had nice big breasts.

Second Incident.

2. On an unknown date between 1^st February 2023 and 28^th of February 2023, different from the first incident, the defendant showed the second complainant, Liliane Suri, a pornography movie on his mobile phone.

Third Incident.

3. On an unknown date between 1^st February 2023 and 28^th February 2023, different from the first and second incidents, the defendant told the second complainant Liliane Suri words to the effect “kaen smol samting blo ufala ya hem nice tumas for hoholem.” In translation it means “a small vagina like yours is very nice to hold”.

Sentencing guidelines.

13. In the case of Bara V R^[1], the court of Appeal set certain guidelines for the Judges to adhere to as follows;
    1. A sentencing Judge should identify a starting point.
    2. From there an adjustment will take account of factors which make the offending more serious (aggravating features).
    3. Or may serve to suggest the sentence is too harsh an often related to the offender than the offence (mitigation features).
    4. 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 an early guilty plea.
    5. Where discount be given that should be indicated. Where no discount to be given, a reason for that decision should also appear in the remarks.
    6. Where no allowance is to be made for pre-sentence period in custody the Court should give reasons.
    7. Finally, the application of totality principle of the sentence to ensure the end result reflect the criminality involved.
14. The defendant was charged for persistent sexual abuses of children which constitute a sexual offence on 3 or more separate occasions occurring on separate days during any period.
15. S. 139 (2) is an offence where a person commits an indecent act on a child who is under 15 years of age. If the child is under 13 years of age the maximum penalty is 7 years imprisonment.
16. In this case the seven incidents did not constitute sexual intercourse as prescribed by S. 136 D of the penal Code (Amendment) (Sexual Offences) Act 2016, but indecent acts.

Starting Point.

17. It appears from the amended Information filed on 2nd February 20024, that the defendant was charged with two offences, one under S. 142(2) of the Penal Code as amended in 2016, and the other is under S. 139(2) of the same amendment
18. The intention as I would perceive is that S. 142 (2) provides for the definition of the offence as persistent sexual abuse of the child, whilst S.139 (2) (a) provides for the penalty which is 7 years imprisonment.
19. Therefore, in my view the maximum penalty provided by S. 139 (2) (a) require a starting point lesser than the starting point of 8 years as set by the Court of Appeal in the case of Pana V R^[2], for rape and defilement.
20. Due to infrequent occurrence of this type of offence there is limited authority on record. However, I take comfort in the Court of Appeal case of R v Wilfred Baái as similar offence to this case at bar, which the Court of Appeal imposed a three years imprisonment in respect of S. 139 (1) of the Penal Code as amended in 2016.
21. The brief facts of that case are that the defendant touched the victim’s pubic hair and used his finger to touch her clitoris inside her vagina. It was a single offence.
22. Apparently, following the judgment in the case of R v Baái, I therefore set 3 years as a starting point. The reason is that the offences are at the lower end of offending and not contested.

Aggravating features.
Age of the victims.

23. The victim of the first count is Nevena Lordanis. She was 11 years old at the time of offending. The defendant is her uncle.
24. The victim of the second count is Lilianie Suri. She was 11 years old at the time of offending. The defendant is her grand uncle (biological uncle) to the victim’s father.

Vulnerability.

25. All the offences occurred in the family home. It would seem that the defendant and the two complainants were living in the same house. The home should be a safe haven for the family. However, the defendant took advantage of easy access and the vulnerable ages of the two victims to abuse them. Both victims are of tender ages. They are minors and children under the age of consent. .

Age Disparity.

26. At the time of offending the defendant was 53 years old when the incident first took place with both complainants. The complainants were 11 years old each. The age difference is 42 years.
27. In the case of Pana V Regina^[3], the Court of Appeal state that the actual age of the two victims should still be taken into account as a possible aggravating factor over and above the starting point. It would not amount to double accounting because the fact that the victim is a child brings the case in the starting point, and actual age be considered as to additional factor.

Repetition of offending.

28. There were four instances of indecent act offending against the first victim Miss Nevena Lordanis and three against the second victim occurred between 1^st February 2023 and 28^th February 2023.
29. Those incidents attributed to the defendant’s engagement in indecent acts that constitute sexual offences on separate occasions against each victim. Amazingly the seven incidents occurred within one month. The defendant continued to repeat his desire to sexually abused the two children. That is aggravation per se.

Breach of Trust.

30. The defendant is a step uncle to the first victim and a grand uncle to the second victim. Those relationships are very close and would be rightly prescribe as one family.
31. In a family unit there ought to be care, concern, respect and dependency for security and harmony. The defendant is treated as having a position of trust and responsible for the safety and welfare of the victims. Instead he defiled and abused the trust vested on him as senior member in the family. He actually breached the trust, law and custom in sexually abusing the two children. He is someone cannot and no longer be trusted in their family.

Emotion and psychological harm.

32. There may have been no evidence that the victims suffered psychological harm. However, this Court has taken judicial notice of any devastating effect shame or trauma the victims may have suffered. It cannot be ignored.
33. Though the offences are regarded as lower end of offending the fact that stands out unchallenged is that the ages of the victims are 11 years of age each. The ages are tender in nature and vulnerable to indecently abused and immorally assault.
34. To touch the buttock, breast and private part of the victim whilst her clothes were on actually defiles the decency of the victim in particular the first one. Such indecent assault in the circumstances is not acceptable and deplored by the victim. It caused shame and anxiety to her knowing that defendant is her own uncle.
35. The worst scenario was when the defendant asked the victim to hold his penis. That is a direct approach which may led to committal of further serious sexual offence. Fortunate for the victim she refused.
36. The defendant employed another tactic in approaching the second victim. He did mention her breast is nice and her vagina is good to hold. He further showed her a pornographic movie. Those are indecent actions manifested to lure the second victim to involve in further serious sexual offences.
37. Having said that, it is most appropriate to accelerate the starting point by two years adding up to 5 years.

Mitigating facts.
Guilty plea.

38. On 26^th February 2024 when the allegations were read to the defendant, he entered a plea of guilty to all the allegations, 4 in count 1 and 3 in count 2. He also agreed to the facts of the case when read. I accept the bold stand taken by the defendant in admitting all the seven instances. His admission shows he has a contrite heart and is willing to accept any punishment impose by the Court. I must give him credit for admitting the allegations at the first opportunity.
39. He felt remorse and sorry for what he had done to his relatives. That has been expressed by his Counsel in his submissions. I consider that as well.
40. By pleading guilty at an early stage saves the complainants from coming to court to give evidence. In doing so avoid conducting a full trial, time wastage and resources saved.

First time offender.

41. It is not challenged that the defendant is a first-time offender. He has no previous criminal convictions. The offences are his first crush with the law. I give him credit as well for being of good behavior for more than 50 years.

Final analysis.

42. The sentences I will impose is this case will reflect the circumstances surrounding the committal of those allegations. The two very young tender age girls (11 years each) are relatives of the defendant. The defendant had gone out of his way to indecently abuse and assault the girls. As an elder uncle, he should love, and respected the girls, instead defiled all customary law and relationship, as well as the law of the state.
43. Nevertheless, I have accepted the defendant’s plead guilty at first opportunity and the fact he has no criminal previous convictions.
44. This sentence will reflect the gravity of the offence to emphasize the public disapproval, to serve as a warning to the defendant and others and to punish the him. Lastly to protect young girls within the communities.
45. I therefore conclude that after considering the mitigating facts, I reduce one year from the head sentence. The sentence to serve is 4 years.
46. For count 1, a sentence of 4 years is imposing on all allegations. For count 2 another 4 years is impose. Both sentences to run concurrent, total is 4 years.

Orders:

1. 4 years imprisonment for count 1 to run concurrent to 4 years imposed in Count 2.
2. Total sentence to serve is 4 years.
3. Number of months remanded in custody be deducted from 4 years.

THE COURT.
Hon Rex Faukona.
DEPUTY CHIEF JUSTICE.

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^[1] [2018] SBCA 10; SICOA – CRAC of 2017 (11 May 2018).
^[2] [2013] SBCA 19.
^[3] Ibid (2).