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R v Tabangara [2020] SBMC 9; Criminal Case 2 of 2020 (6 April 2020)

IN THE MALAITA DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT AUKI )
(Criminal Jurisdiction)


Criminal Case No. 02 of 2020


REGINA


-v-


CHARLES TABANGARA


Date of hearing: April 1st, 2020
Date of sentence: April 6th, 2020


Mr. Selwyn Vaike for the Prosecution
Ms. Cathy. S. Hite for the Accused


SENTENCE

Introduction


  1. The Accused, Mr. Charles Tabangara pleaded guilty to three (3) counts of Incest and a count of attempted incest on his own biological daughter. The offence of Incest is provided for under section 163 (2) (b) of the Penal Code (Cap. 26) as amended by (Amendment) (Sexual Offence) Act 2016, and Attempted Incest under section 163 (5) (b) of the Penal Code (Cap. 26). The sequence of offence occurred in 2018, 2019 and 2020, within these years he had had sexual intercourse with his biological daughter.

Agreed Facts


  1. The facts of the case showed that the victim was 15 years old and the daughter of the accused person. The accused is a 57 year old native of Gwaunatafu, West Fataleka, Malaita Province.
  2. The circumstances leading up to incidents are that both the accused and victim have participated in watching pornographic videos which then influenced the Accused to commit the offence.
  3. The first count occurred on an unknown Tuesday in December of 2018 at Kwaree School compound. It was around evening when the victim and her nephew were sleeping in their house when the accused person went to where the victim was sleeping, laid behind her and wakes her up. She got up to see the accused person persistently asking her for sex. She was reluctant at first but after gave in and undressed her clothes. The accused did the same and removed his clothes. Thereafter, he move forward and laid on top of the victim. At this moment, he set apart the victim’s legs and penetrated his erected penis into her vagina and had complete sexual intercourse with her.
  4. The second count 2, happened on an unknown date of December 2018 at Kwaree School Compound. The Accused entered into the room, laid behind the victim and fiddled the victim’s body. The victim woke up to see the accused in her bedroom. He then persuaded her to take off her clothes and to have sex with him. Being under fear, she took off her clothes while the accused undresses himself and penetrated his penis into her vagina and had sex with her.
  5. The third count occurred on an unknown date on June 2019 during the night at Kwaree school compound, West Fataleka. The victim was asleep when the accused entered the bedroom and laid beside her mosquito net. She then felt the accused presence and woke up to see him. At that point in time, the accused persuaded her to take off her clothes to have sex with her. The accused proceeded and undresses himself and move to lay of the victim. He spread her legs apart and inserted his penis and had sexual intercourse with her.
  6. The Fourth count happened on Thursday 23rd January 2020 at about 10:00AM at Kwaree school compound, West Fataleka. The victim was laying in her bedroom when the accused entered her bedroom. The accused held his penis and masturbated in front of her. Furthermore, the accused moved on top of her and tried to take off her clothes. The victim refuses but the accused insisted until the victim’s mother intervened and saw what the accused was doing.
  7. Counts 1 to 3 occurred while the victim’s mother was not at home.
  8. The incident was reported to the Auki Police and upon investigation the accused was arrested and charged with three (3) counts of incest contrary to section 163 (2) (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 and Attempted Incest contrary to section 163 (5) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.

Maximum prescribed Penalty


  1. The offence of incest is categorized as one of those grave offences provided under our Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Our legislators have made a significant increase to its maximum penalty to 10 years imprisonment. The surge is obviously to discourage and forbid incestuous relationships within our families. Of course, it is settled law in this jurisdiction that matters are ruled on their own merits and nature, and that no two cases are alike.
  2. In his allocutus, the accused in his own words stated “No punishment imposed by this Court will be enough to punish me for the wrong that I did, it is a consequence that I will personally face for the rest of my life and it’s a lifetime pain and regret that I will bear as my responsibility for the wrong that I did”.
  3. This is an awful case involving the accused and his own biological daughter. He is correct to realize and understand that no sentence imposed by this Court would mend the damage he has done to her daughter and the entire family. She will carry the pain, shame and blame for the rest of her life. All because the accused had went beyond the forbidden limit.

Aggravating factors


  1. I have considered the facts and took into the following as the aggravating factors:-
    1. Breach of trust. The accused has breached his trust as a Father when he committed this offence against his own biological daughter. In case of Hagataku[1], it states that the offences of incest between Father and Daughter are generally more serious in gravity than offences in incest between brother and sister. This is to explain the fact that, as a Father he is the head of family and one that should lead by example for the best upbringing of his children. Instead he had breached this trust.
    2. The use of pornographic materials to influence the commission of the offence. The use of pornographic materials have obviously distort the view of relationship we have in our family, especially as brothers and sisters or Fathers and Daughters. It is a harmful promoter to any family and can turn the mind to act out of our common sense, customary values and Christian principles and the law.
    1. The act of incest was premeditated and repeated. The sequence of events apparent on the face of facts reveals a careful mind to execute offence against the same victim. For some, it occurred at night time.
    1. There is a huge age disparity of 21 years. The accused was 57 years old and the victim was 15 years during the time of offending. Clearly, there is a power imbalance, whereby the accused has used his maturity to lure the victim in his evil and lustful web.
    2. Mental and Psychological trauma. The damage and harm done to the victim is simply beyond fathom, she would likely suffer from mental, physical and emotional trauma and will live with it for the rest of her life.

Case Authorities


  1. The following are case authorities which reflects the sentence tariff for offence of incest in Solomon Islands. It is distinguishable to assist the Court in reaching a fair, just and proper sentence for the accused.
  2. In Regina v Ningalo[2], the offender entered an early guilty plea on four (4) counts of incest under section 163 (1) of the Penal Code. The victim is his daughter. The prisoner was sentenced to 4 years imprisonment for each of the 4 counts.
  3. In the case of Regina v Manekoto[3] the accused pleaded guilty to three counts of incest and a count of intimidation contrary to section 231 (1) of the Penal Code. He committed these offences against his own sister. He was sentenced to 3 ½ years’ imprisonment for the first two counts, four (4) years for the third count and six months for the last count. The Court sentenced the accused for 4 years on the third count because he never step back and learnt from his previous two offending. In total he was sentenced to 4 years concurrently.
  4. In R v Zonga[4], the accused entered an early guilty plea to a count of incest under section 163 (2) (b) of the Penal Code (Cap 26) as amended by the (Amendment) (Sexual Offences) Act 2016. The accused is also related to the victim as the biological Father. The accused was sentenced to 4 years imprisonment.
  5. Furthermore, in the case of R v Gole[5], the prisoner entered the room where his 15 years old daughter (victim) was sleeping. The victim woke up to find the prisoner on top of her. She then felt pain as he began to have sexual intercourse with her. She could not say or do anything as she was in a state of shock at what her father was doing to her. Her Father then left the room. The victim was unable to tell anyone about what had occurred as she feared her Father and was ashamed to tell her Mother. It was until she got pregnant that she revealed what her father did to her. The Prisoner was sentenced to 5 years and 6 months imprisonment.
  6. In the case of Regina v Evanis[6], the accused was charged with 5 counts sexual offences, 3 counts on rape and 2 counts for incest contrary to section 163 (2) (a) of the Penal Code as amended by the (Amendment) (Sexual Offences) Act 2016. The Accused pleaded guilty to all the charges against him. He was sentenced to 4 years imprisonment on the count of incest to be served concurrently.
  7. Having carefully considered the facts, nature of offence, aggravating facts and distinguishing with the above cited case authorities, it is my view that this case is similar to that of Zonga. However, this case is much serious because it is repeated on this young and vulnerable teenage daughter, thus, any starting point must be above that of Zonga.

Starting point


  1. For what I have stated above, I now set the starting point for these 4 counts as follows:-
    1. Count 1, Incest contrary to section 163 (2) (b) of the Penal Code as amended by the (Amendment) (Sexual Offences) Act 2016 – 6 years’ imprisonment.
    2. Count 2, Incest contrary to section 163 (2) (b) of the Penal Code as amended by the (Amendment) (Sexual Offences) Act 2016 – 6 years’ imprisonment.
    3. Count 3, Incest contrary to section 163 (2) (b) of the Penal Code as amended by the (Amendment) (Sexual Offences) Act 2016 – 7 years’ imprisonment.
    4. Count 4, Attempted incest contrary to section 163 (5) (b) of the Penal Code as amended by the (Amendment) (Sexual Offences) Act 2016 – 5 years’ imprisonment.
  2. The increase to starting point of count 3, is based upon the repeated nature and or that the accused did not learn and change from the initial two (2) counts.

Mitigation features


  1. I find the following to be the mitigating features for the accused person:-
    1. Early Guilty Plea. The Accused has entered an unequivocal guilty plea to the 4 counts against him. It has saves much of Court’s time and resources to run a full-trial for this matter and avoided the need for the victim to recount on the awful and unpleasant memories. He has demonstrated a genuine remorse through his allocutus.
    2. Cooperation with Police during investigation. The Accused has assisted the Police during investigation and helped to progressed the matter to finality in a speedy approach.

Sentencing consideration


  1. For counts 1 to 3, I must give full credit for his early guilty plea, as such, remove 20 months’ or 1 year and 8 months. I further deduct 4 months to consider his cooperation with the police investigation and other mitigating factors. Therefore, the resulting sentence for counts 1 and 2 is, 4 years’ imprisonment and for third count – 5 years’ imprisonment.
  2. For count 4, I deduct 16 months to reflect his early guilty plea and 2 months to consider his assistance to the police investigation. Therefore, the resulting sentence is 3 years’ and 6 months imprisonment.

Sentence remarks


  1. This is a terrible, sadistic and disgusting conduct by the Accused to have lured the victim into this whole disgraceful incident. He has preyed on her vulnerability to satisfy his lustful, immoral thoughts and sexual pleasures.
  2. The victim’s adolescent stage has been cut short from this incidents. She will now live with the scars of the event for the rest of her life. Thus, demands proper counselling to help her move forward. The Accused must now turn away from these unsightly attitudes and revert to total divine intervention and acceptance to the law and biblical values.
  3. In the case of Hagataku v Reginam[7] 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.”[8]


  1. In the case of Regina v Manekoto[9] 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”.[10]


  1. In case of Regina v Ningalo[11] 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”.


  1. The sentence that I will pass today, must one that reverberate a strong message to him and to the larger communities that the Court will punish those who practice incestuous relationship. For him to understand the position of the law and the repugnance he will receive out of it. To the public, they must now be warned that those who wish to come down this same route are expected to receive the same harsh sentence or more. Our communities need to acknowledge the fact that this is a hideous crime, thus, revert to cultural norms and biblical Christian values as the beacon of respect, dignity and prosperity in the life we live in today.

Sentence Orders


  1. I hereby sentence the accused person – Mr. Charles Tabangara as follows:
    1. Count 1, Incest contrary to section 163 (2) (b) of the Penal Code as amended by the (Amendment) (Sexual Offences) Act 2016 – 4 years’ imprisonment.
    2. Count 2, Incest contrary to section 163 (2) (b) of the Penal Code as amended by the (Amendment) (Sexual Offences) Act 2016 – 4 years’ imprisonment.
    3. Count 3, Incest contrary to section 163 (2) (b) of the Penal Code as amended by the (Amendment) (Sexual Offences) Act 2016 – 5 years’ imprisonment.
    4. Count 4, Attempted incest contrary to section 163 (5) (b) of the Penal Code as amended by the (Amendment) (Sexual Offences) Act 2016 – 3 years’ and 6 months’ imprisonment.
    5. Since all these counts occurred against the same victim or his own daughter, I order that this sentence be served concurrently. Hence, the accused will serve the 5 years’ imprisonment to reflect all the counts 1 – 4.
    6. Sentence to commence from date of first remand and or backdated to the day he was first remanded.
    7. Right of Appeal applies within 14 days of this sentence.
    8. Order accordingly.

THE COURT


...........................................................................
MR. LEONARD. B. CHITE
Principal Magistrate
Malaita District Magistrates Court

[1] [1993] SBHC 61
[2] [2013] SBHC
[3] [2017] SBMC 1020
[4] [2019] SBMC 12
[5] [2013] SBHC
[6] [2018] SBHC 93
[7] [1993] SBHC 61, HCSI-CRC 8 of 1993
[8] At page 1 of the sentence
[9] [2017] SBMC 1020
[10] At page 3 of the sentence
[11] [2008] SBHC 78

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