R v Zonga [2019] SBMC 12; Criminal Case 70 of 2018 (21 February 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT GIZO )
(Criminal Jurisdiction)

Criminal Case No. 70 of 2018

REGINA

-V-

PATRICK ZONGA

Date of Hearing: February 15^th, 2019
Date of Sentence: February 21^st, 2019

Mr. Ishmael. F. Kekou for the prosecution
Mr. Clifton. M. Ruele for the defendant

SENTENCE

Introduction:

1. The accused, Mr. Patrick Zonga (“accused”), appear before this Court on one count of Incest contrary to section 163 (2) of the Penal Code (Cap. 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 and Common Assault contrary to section 244 of the Penal Code (Cap 26). He pleaded guilty accordingly and I entered conviction on his own guilty pleas. Therefore, I must make an appropriate sentence for his case.
   

Agreed summary of facts:

2. The accused is related to the victim as the biological father. The agreed facts show that on the month of November 2017, the accused stopped the victim from going out but to stay at home in Baniata village on Rendova Island. At that time, the victim was 17 years old and she was frightened of the accused so she stayed at home most of the time.
   
3. All the while that month, the accused persistently asked the victim to have sex with her but she refused on all the times.
   
4. Around midday in the second week of December 2017, she was sleeping in her room when she felt someone enter her room. She woke up and looked to see the accused in her room. She quickly got up and ran away from the accused.
   
5. From January to March 2018, the accused continued to ask the victim to have sex with him but she continued to refuse.
   
6. On one occasion between January and March 2018, the accused found out that the victim started smoking so he got angry and spanked the victim with a broom. He beat her legs and lower buttocks and she felt very painful.
   
7. One morning in April 2018, the accused entered the victim’s room. The victim was asleep and her legs were apart which exposes her vagina. She was wearing a dress with no panties. The accused saw this and laid on the victim, inserted his penis into her vagina and moved his ass up and down until he ejaculated. Whilst doing that, the victim did not struggle because she was afraid of the accused.
   
8. Thereafter, the accused stood up and exited the room. The complainant did not want what the accused did to her.
   

Max Penalty:

9. The maximum penalty for Incest contrary to section 163(2)(b) of the Penal Code (Cap 26) as amended by the (Sexual Offences) (Amendment) Act 2016 is ten (10) years’ imprisonment.
   
10. The amendment only reflects the intention of our legislators or law making body to abhor or discourage such offending. Of course, the maximum penalty is reserved for the worse type of offending.
    
11. There are certain relationships, associations and affairs that totally forbids and or out of bound for sexual intimacy, one of which is the family relationship between sisters and brothers and Fathers and daughters as in this case. Surpassing the said boundary is an act of incest under our Penal Code and is unlawful at its entirety. This notion to forbid such incestuous relationship is derived from the three predominant virtues; common sense, cultural norms and Christian beliefs and practices.
    
12. In the case of Hagataku v Reginam^[1] Justice Palmer (now CJ), made remarks of incestuous relations in the following sentiments: -
    

“The offence of incest in our Penal Code which is derived from the English Law has its roots in the Bible. It is however not altogether foreign and something that was introduced into these islands only when the Christian Gospel was brought to these islands at the turn of this century. In most cultures, incestuous relationships are strictly forbidden in custom. As in the Bible, such relationship will bring a curse into the person’s house and family. So although the defendant may not have been as enlightened as he should be about this offence he should have been aware of the way his society and community would show repugnance and detest at any such activity. It is this customary and religious context that perhaps makes such offences to be considered in a more stricter light than say the position is in a westernized society.”^[2]

13. In the case of Regina v Manekoto^[3] His Worship Aulanga PM, made the following remarks to condemn the incestuous relationship: -
    

“The need for close family members not to have incestuous relationship amongst themselves is the very notion that makes human beings different to animals so to speak”.^[4]

14. In this case, the accused as the head of the family and or Father of the family, ought to be hold accountable for his actions. It is utterly sickening for an adult and the father who is expected to be well versed with common sense and morals acted completely stupid and senseless, that is, to be the one making advances against his own daughter and thereby forcefully pave his way for sexual pleasure.
    

Aggravating factors:

15. Having perused the agreed facts, these are of course the apparent aggravating factors in his case:
    
    • 15.1. Breach of trust – The accused as a father to the victim should provide love, support and protection. The victim should feel safe and secure around him, free from all senseless external lustful thoughts and incestuous deeds. However, he breached the trust by paving his own way to please his sexual gratification and thereby have sex with his own daughter (victim).
      
    • 15.2. The act of incest was premeditated – The accused had demonstrated his long intentions to have sex with his own daughter (victim) by his persistent advances he made towards his daughter (victim). He asked the victim for sex on many occasions and even entered the daughter’s (victim) bedroom but she escapes on those occasions. He eventually surpassed the “no go zone” in April 2018, when he had sex with his own daughter while she was asleep.
      
    • 15.3. There’s a huge age disparity of 21 years – The accused was 38 years and the victim was 17 years old during the time of the offending.
      
    • 15.4. Psychological trauma - The series of effects done on the victim will affect her mentally, physically and emotionally for as all as she can live in this world.
      
    • 15.5. Use of broom – the accused used a broom to belt the victim with in committing the offence of common assault. Since broom does not form part of his body and when used against human being can inflict injury, I consider it as a weapon capable of inflicting serious injury as in this case.
      

Case authorities:

16. I appreciate the efforts rendered by counsels to provide the number of case authorities to assist this court as guideline to arrive at a just and fair sentence.
17. There are several cases of the offence of incest in this jurisdiction, however, the two most similar ones are; Regina v Manekoto and Regina v Ningalo.
    
18. In case of Regina v Manekoto^[5] the accused pleaded guilty to three counts of incest contrary to section 163 (1)(c) & (2) and one count of intimidation, contrary to section 231 (1) of the Penal Code. He committed those offences against his own sister. He was sentenced to three and half years for the first two counts, four years for the third count and six months for the last count. In total, he was sentenced to four years in concurrent.
    
19. In Ningalo^[6] the victim is the biological daughter to the accused. The accused entered a guilty plea to 4 counts of incest. The Court imposed 4 years imprisonment on each count but to serve concurrent to his other counts.
    
20. Having outlined the above cases which reveals the ranges of tariffs applied in Courts within this Jurisdiction, it is in my view that this case when compared to the above cited cases falls in upper-range of the offence of incest per the new amendment of the sexual offences provision of our current Penal Code (Cap 26). Hence, any sentence must one that is upper than Manekoto case.
    

Sentencing principle:

21. In terms of sentencing, it is the predominant principle, that is, each case must be decided on its own merits and unique set of facts. Past cases can only be used as a guide and sometimes can be of little value. In Sahu v Regina^[7] the Court stated:

“It is well accepted that the technique of comparing sentences imposed in different cases is of limited assistance and provides only imperfect guidance as to the appropriate sentence in any given case.” However, to ensure uniformity and coherence, past cases can be of significant assistance.

Sentencing remarks:

22. I hereby rehearse the view expounded in the case of Regina v Gogonokana^[8]where this Court stated that;

“Sexual offences in this part of the Jurisdiction and or the Western and Choiseul Province are now becoming a race competition, the statistics for cases involving sexual offences has sky rocketed since last year, 2018. The Court as the institution to maintain justice and hold people accountable for their illegal acts, in my respectful view must now take a bold stand against such hideous crimes in our society to echo the core message that this Court will not tolerate such offending and that those who practices such unsightly conducts must face the full force of law and shall expect no leniency”.

23. In case of Regina v Ningalo^[9] His Lordship, Justice Apaniai (as he was then), stated at paragraph 9 of the sentence;
    

“The seriousness of the offence of incest, or any other sexual offence for that matter, lies in the fact that it is an offence, which is committed out of a selfish desire for sexual gratification in total disregard for the rights and dignity of the victim. Such behaviour amounts to nothing more than a betrayal of the child’s expectation for parental protection. It also amounts to abuse of authority and it is a very serious breach of trust on the part of the father”.^[10]

24. In case of Regina v Hagataku v R^[11] Palmer CJ stated that the offence of incest between father and daughter are generally considered more serious in gravity than offences of incest between sister and brother.
    
25. The sentence that this Court will pass in this case must not turn a blind eye on the current situation. It must resonate a strong message to the likeminded people and the general public, that this Court will never tolerate and must deter those who roam our societies with lustful and incestuous minds to prey on those vulnerable persons in our societies. They must now understand and recognize that the law of this nation blankets all individual and transparently penetrates its arms through those shielded doors and walls to hold those perpetrators accountable.
    

Starting point:

26. Having considered the abovementioned aggravating factors including the circumstance of the offending and due consideration to the tariffs provided in the cases cited herein, I see it appropriate that the starting point is 6 years’ imprisonment and for common assault 3 months imprisonment.
    

Mitigating factors:

27. I take due account to the following factors as mitigation for the accused: -
    
    • 27.1. Guilty plea and remorseful – The accused entered an unequivocal guilty plea to the charge against him. I shall give full discount available in the case of R v Qoloni that is 30 % discount. Clearly it shows that he has own up to his wrongs and accept the consequences. His guilty pleas show remorse and saves courts time and resource to run a full trial. It also avoids the strain to have the victim recount on the disturbing memory of what had happened.
      
    • 27.2. First time offender or No previous conviction – The accused is a first-time offender which means that this is the first time for he had the clash with the law.
      
    • 27.3. The accused is married with 5 children – clearly this show that he have a huge family responsibilities on his hand.
      

Sentencing consideration:

28. I hereby reduce 22 months to consider his unequivocal guilty plea, further reduce 2 months for the fact that the accused is a first-time offender and his personal and family circumstances.
    

Sentencing Order:

29. Upon hearing the submissions from the prosecution and the defence, I hereby sentence, Patrick Zonga, as follows:
    • (a) Count 1 – Incest by male, contrary section 163 (2) of the Penal Code (Cap. 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 – 4 years’ imprisonment.
      
    • (b) Count 2 – Common assault, contrary to section 244 of the Penal Code (Cap 26) – 2 months Imprisonment.
      
30. All sentence will run concurrent meaning, he will serve 4 years impriso.
    
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32. 14 days right of appeal applies.
    

THE COURT

...........................................................................
MR. LEONARD. B. CHITE
Principal Magistrate

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^[1] [1993] SBHC 61, HCSI-CRC 8 of 1993
^[2] At page 1 of the sentence
^[3] [2017] SBMC 1020
^[4] At page 3 of the sentence
^[5] [2017] SBMC 1020
^[6] [2008] SBHC 78
^[7] [2012] SBHC 122
^[8] [2018] SBMC 193
^[9] [2008] SBHC 78
^[10] At page 2 of the sentence
^[11] [1993] SBHC 61, HCSI-CRC 8 of 1993