Regina v Rukarae [2016] SBMC 14; Criminal Case 511 of 2015 (9 June 2016)

IN THE CENTRAL MAGISTRATES COURT
OF SOLOMON ISLANDS AT HONIARA
(Criminal Jurisdiction)

Criminal Case No. 511 of 2015

REGINA

v

JOE RUKARAE

Crown: Ms. E. Rizzu of the Office of the Director of Public Prosecutions
Defence: Mr. L. Waroka of Public Solicitors Office
Trial: April 4-6, 2016
Closing submission: May 4, 2016
Judgment: May 17, 2016
Sentence submissions: June 9, 2016
Sentence: June 9, 2016

SENTENCE

1. Thedefendant, Joe Rukarae, was convicted after trial for two charges of indecent assault against a 10 year old victim by the name of Mercy Samina, contrary to sections 141(1) and (3) of the Penal Code.The defendant was the grandfather of the victim and they lived together in the same house during the timesof the offending. These two offences occurred between 1^st of January 2015 to 5^th of June 2015 in Yandina, Central Islands Province.
   
2. The maximum penalty for the offence under section 141(1)^[1]is 5 years imprisonment. The other offence under section 141(3)^[2]is 1 year imprisonment.
   
3. Since this is a trial matter, the appropriate disposition of this case will be a custodial sentence. The question of how long he will serve in prison will be decided later in my sentencing remarks.
   
4. Thebrief facts that have been proved following the trial for these two offences are straight forward. According to the sequence of the offending, the first offending occurred on an unknown date between the 1^st of January 2015 and 5^th of June 2015 when the defendant showed or exposed his penis to the victim. This happened when he was standing close to the victim inside the toilet buildinglocated behind their dwelling house. During the course of showinghis penis, he described it to her that it was the thing that goes inside something of females. In other words, what was meant from his words is more of a generic expression of his penis as an organused for sexual intercourse with females or,such meaning to that effect.
   
5. The second incident occurred during the night of the 5^th of June 2015 when the victim was sleeping with her brother in their sitting room. On that occasion, the defendant silently walked over to her, held her buttock and turned her to face up from her original sleeping position. It was at that stage he held her body inside her trouser. The victim realised this, got up and cried. This made her parents came to her during that night and eventually located the defendant who at that time was hiding at a corner inside the house.
   
6. The act of indecent assault is not only morally wrong but a criminal offence in Solomon Islands. It falls under the sexual offences in our jurisdiction. It is an assault involving immoral conduct that offends the accepted norm or standard of decency in our society.Except for small children who off course will be innocent of this, those who indulge in this type of conduct are full of lusts or, their minds might have been contaminated or obsessedwith immoral thoughts. This kind of conduct if continued to be practised will be a starting point to other sexual offences and would elevate to other serious forms of sexual offences.
   
7. For these offences, I have considered the entire submission advanced on his behalf by his lawyer. While many being said in his mitigation, I find this is perhaps the only mitigating feature in his favour. That is, he is a single father with 3 children. It is trite to say at this stage that he has a family responsibility to look after as a father of his own family.
   
8. I have considered that mitigating factor and accordingly given due weight to it in deciding the appropriate sentences to be imposed on him. However, I will not treat him as a first time offender since he had one prior conviction. Also, I disagreed with the submission that he is remorseful since he persistently denied those charges which resulted in the trial. Perhaps, that might be regarded as an apology but not remorse. This is because the instruction that he gave to his lawyer involves an allegation that denied the testimony of the victim. Because of that, he showed no remorse at all for his actions which eventually uncovered following the trial.
   
9. There are number of aggravating features in this case which for the purpose of this sentence needs commentary.
   
10. First, the defendant is related to the victim as her grandfather. This relationship has an element of trust and responsibility. He as her grandfather ought to take care, nurture and look after herbecause of this blood relationshipand also, because they all lived in the same house in Yandina. Instead, he abused that trust and acted contrary to what is expectedof a grandfather. The defendant ought to know that she was just a little girl at that time but took advantage of her vulnerable age by showing her his penis and indecently placing his hand inside her trouser. His respective actions from those two incidents clearly breachedthat trust and responsibility that he is entrusted with towards her.
    
11. The second aggravating feature is,his indecent conducts are repetitive against the same victim. The defendant already had the time to think and reflect upon his first act, yet he failed to do that. He continued to indulge in that immoral conduct resulted in the second incident against the same victim. This shows that he never learnfrom his lesson but persisted with his evil mind to degrade and offend the modesty of the victim to satisfy his sexual desires.
    
12. The third aggravating factor ishis age difference to the victim. He was 55 of age whilst the victim was only about 10 years of age at the time of the two offending. This shows 45 years age difference between him and the victim. This age difference is aggravating in the sense that it showed the power imbalancebetween him and the victim.The defendant who in an advanced age easily manipulated his adulthood and preyed on the vulnerability of the victim to advance his sexual gratification to her detriment.
    
13. The fourth is the young age of the victim. Given her very young and tender age, he exposed her early to indecent acts and his adulthood nudity which will have adverse effects on her mentality and become part of her memory for the rest of her life.
    
14. Finally, the second offending in my view reflects an element of planning. This was reflected by serious of preparatory actions he took before and during the commission of the offence. First, he had to move from his sleeping room and walked over to the sitting room to find the victim. Second, he had to wait until the odd hours of the night before he carried out his indecent assault on the victim. Third, he ensured the victim was sleeping before he decided to walk over to her and started to hold her body parts. Fourth, he had to turn the victim up from her original sleeping position before he held her body inside her trouser. These actions showed he had carefully put his minds into how to indecently assault the victim which he successfully done it that night.
    
15. The disturbing feature that can be gleaned from his offending is that,the defendant had displayed an act which no right minded grandfather can do to his granddaughter. It also shows how vulnerable childrencan be exposed to the evils of sexual predators when they are alone in our societies. The defendant in this case has no exception but a prime example of one of those who joined the group of people to take advantage on young children only to satisfy his sexual gratifications.
    
16. In light of those aggravating features that self-explained how he committed the offences, I find the level of the defendant’s culpability for both offences to be towards the upper end of the seriousness of these offending.
    
17. The sentences that I will impose on the defendant must able to teach him a lesson that these type of offending are not acceptable by the courts or our communities. It will also ensure that the deterrent message must be objectively felt so that perpetrators of sexual offences do not take the risk of even thinking to commit thesetypes of offences in our country.
    
18. For sexual offences, the courts in our jurisdiction have made it clear the need to protect our young children from sexual offenders through deterrent sentences. Otherwise, the failure to impose sufficient deterrent message will indirectly encourage the commission of these offences and males in particular will prepare to take the risk of indulging themselves in the commission of these offences.
    
19. The need to send strong deterrent message for sexual offences regardless of the offender’s strong personal and mitigating factors was pronounced30 years ago in the High Court case of R v Ligiau and Dori.^[3]In that case, CJ Ward (as he was then) said:
    

“In sexual offences as a whole........matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes.”^[4]

20. The use of the word “sexual offences as a whole” from these remarks expressed by the then CJ Ward includes indecent assault.
    
21. In R v Tilley^[5], Thomas J, made the same approach which is equally applicable in our context:
    

“An offender cannot shield himself under the hardship he or she creates for others, and courts must not shirk their duty by giving undue weight to personal or sentimental factors. The public, which includes many people who struggle to bring up their children with moral standards, would be poorly served if the courts gave in to the temptation.”^[6]

22. Therefore, to put it simply, what the courts meant in those cases are;whatever submissions the defendant put on his behalf during sentencing hearings must not override or push aside or defeat the need to send strong message to discourage sexual offending in our country.
    
23. This leads me to consider what should be the appropriate sentencesto be imposed on the defendant for indecent assaults committed against young children.
    
24. InR v Pana,^[7]the accused pleaded guilty during the trial for one count indecent assault and one count defilement over a 3 year and 7 months old child who was his niece. In that case, the accused touched the vagina of the child before he had forced sexual intercourse with her. The victim eventually contracted sexual transmitted disease from this offending. The trial court imposed a sentence of 2 years imprisonment for the indecent charge and 14 years for the defilement. He appealed against these sentences and the 2 years imprisonment term remained unaltered by the Court of Appeal.
    
25. In R v Rafita,^[8] the accused, a police officer,was charged with 6 counts of indecent assault and one count of rape over two victims below the age of 11 years. They were his step daughters. He carried out the indecent assault offending over a period of about 4 years with one of the victims.He was convicted after trial. For the indecent charges, he was sentenced to 5 years imprisonment for two of the 6 counts on the basis of repetition and being a police officer besides other reasons. The trial judge described his pattern of offending as more serious since it eventually extended to another victim who they all lived in the same house.
    
26. In R v Okisi,^[9] the court imposed 3 years concurrent sentence on the offender for 5 counts of indecent assault against a 13 year old female. This was following a trial. This case also involved a breach of trust since the offender was the step father of the victim.
    
27. In R v Tebitanga,^[10]the accused was convicted after trial for rape, attempted rape and indecent assault, over a 15 year old victim who was his granddaughter. The accused forced the victim to accompany him to another village in the Western Province but instead raped her along the way. The indecent assault was committed before he raped her in the bush near the main road. He was sentenced to 2 years imprisonment for the indecent assault charge to run concurrent with his other charges.
    
28. In R v Tenu,^[11] the court imposed a sentence of 1 year imprisonment for the accused who was convicted after trial for charges of indecent assault beside his other defilement charge. The victim in this case was a 12 year old girl who was the granddaughter of the accused. That sentence reflected the compensation payment to the victim’s family, the very old age of the offender at the time of sentence and the delay it took from the time the offence was discovered and up to the time it was finalised in court.
    
29. These few caseauthorities show the sentences imposed by the courts for the indecent assault against young children below the age of 15 yearsranged from 1 year to 5 years for charges under section 141(1) of the Penal Code. The more serious the nature of the offending, the more penalty is expected.
    
30. What differentiates these cases from the present case is that, the defendant has a prior conviction compared to those offenders and he did not pay any compensation to the victim’s family.
    
31. I have noted that hehas one previous offending of indecent assault, the same offence he committed again in the present case. He was sentenced by this same court in 2014 for 18 months imprisonment with the remaining 6 months of that term being suspended. He however re-offended again less than a year after his release from prison. This is quite disturbing especially with his behaviour. His repetitive act in the present case showed that he has little contribution of being a law abiding person despite having confronted by this court in the past. His past behavior showed that he has a tendency to commit this offence unless he completely reforms his behavior. An assessment of his past behavior is very important because it will indicate whether or not he will change his ways upon his release from prison.
    
32. I understand that currently, he is almost 56 years of age and will spend some more in prison. His children will be affected by his incarceration. This is unfortunate but he should have thought about these likely consequences first before committing such offences.
    
33. I have noted that there is delay to have his matter finalized in court. This issue of delay will be taken into account in my sentence.
    
34. Considering the seriousness of these offences, his level of culpability, the aggravating features of this case and balancing them with the mitigating and personal circumstances of the defendant, the appropriate sentences for the two offences are as follows:
    
    • (A) For the charge of indecent assault under section 141(1) of the Penal Code – 3 years imprisonment.
      
    • (B) Charge of indecent assault under section 141(3) of the Penal Code – 1 year imprisonment.
      
35. These sentences have taken into account the delay that occasioned to have this matter finalized in court. Both sentences will run concurrent to each other.
    
36. Accused has 14 days as of this date to appeal this sentence to the High Court.
    

ORDERS OF THE COURT

(A) Impose 3 years concurrent sentence for both offences.

(B) Time spent in custody is to be taken into account.

....................................................................................
THE COURT

Augustine Aulanga - PM

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^[1] Penal Code
^[2] Ibid
^[3]1985-1986 SILR 214
^[4] At page 1
^[5] (1991) 53 A Crim R 1 (Qld CA)
^[6] Quoted from R v Foa [2010] SBHC 92; HCSI-CRC 256 of 2008
^[7] HCSI – CRC No. 402 of 2008
^[8] HCSI – CRC No. 63 of 2011
^[9] [2008] SBHC 79; HCSI-CRC 72 of 2007
^[10] [2013] SBHC 24; HCSI-CRC 75 of 2009
^[11] [2015] SBHC 85; HCSI-CRC 118 of 2014