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R v Samo [2018] SBHC 117; HCSI-CRC 71 of 2017 (19 July 2018)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 71 of 2017

REGINA

V

PAUL SAMO
Defendant

Date of Hearing: 11 July 2018
Date of Sentence: 19 July 2018

Mr. Ronald B Talasasa (Jnr) and Ms. Freliz Fakarii for the Crown
Mr. Wilson Rano for the Defendant

SENTENCE

Palmer CJ.

1. You were initially charged with rape, a very serious offence, carrying a maximum sentence of life imprisonment, to which you entered a not guilty plea, a trial was then scheduled for hearing of that matter. At commencement of trial however, the learned Director of Public Prosecutions (“the Director”) entered a nolle prosequi to the charge of rape to have you discharged and a lesser charge of indecent assault substituted therewith. It is important to note this distinction from the outset for had that charge been maintained and you had been convicted, a higher custodial sentence would have been expected for the offence of rape is more serious than the offence of indecent assault.
2. You were re-arraigned on the substituted charge, you entered a guilty plea and the matter proceeded for mitigation and sentencing submissions thereafter.
3. The offence of indecent assault used to carry a maximum sentence of 5 years. In a recent amendment, under section 138(1) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016, the maximum penalty for the offence where the victim is under 13 years of age, was increased from 5 to 10 years.
4. This was a change effected by Parliament to reflect public and community aversion and concerns in the increase and prevalence of this type of offence against young and vulnerable members of our community. Young children of very tender age fall within this category. In Regina v. Hoka CRC 159 of 2011, 10 December 2012, Pallaras J. addressed this in his sentencing remarks at paragraphs 14 and 15 and commented at paragraph 16 as follows:
   • “This Court has a small but vital role to play in this process. It is to deliver fair and just penalties befitting the crime in a manner that will serve the long accepted need to impose sentences in appropriate circumstances that will act as both general and specific deterrents. The community has a right to expect that of its Courts and the Courts must respond appropriately.”
5. Courts in this country are obliged to consider sentences that reflect this widespread public concern in the community and impose appropriate sentences in each case.
6. I have been referred to previous cases for indecent assault before the amendment of the offence. The range of sentences imposed was from 2-3 years. The starting point and sentences to be imposed for indecent assault under the recent amendment accordingly should expect to be raised depending on the circumstances of each case.
7. The starting point in my view in such a case without any aggravating or mitigating features, in a non-contested case should be three years. In the circumstances of this case, where aggravating features exist, there should be an increase in the sentence of imprisonment to be imposed.
8. To that extent, I take note of the following additional aggravating features. First, is the age difference between the victim and the defendant; the victim a child of 5 years and the defendant at time of offending, 33 years old. Secondly, the position of trust you were in. The mother of the child trusted you as an uncle to look after her child while she went to work. It is pertinent to note that you were a married man and already a father, you had two children of your own. The relevance of this is that there is an expectation that you would look after her child well. In custom the victim would also be regarded as your own child, sadly that has been abused. Both aggravating features, of age and trust, impose a duty and responsibility on you to look after and care for this child like your own but you forgot your identity as an uncle and allowed your lust to take over your feelings and desires, you took advantage of your age and position of trust to abuse this little child. You have caused needless distress and trauma upon the child and whatever emotional and psychological damage may have been caused will take many long years to heal. You have exposed her to something which you as a “father in custom” ought to have protected her from. It is difficult to comprehend how you a mature man would descend so low and harm your little niece, in this way.
9. I also take into account as an aggravating feature the physical harm or injury caused, a form of invasive violence of an extreme kind where the victim, virtually vulnerable and helpless to defend or protect herself, was sexually violated for your own selfish gratification. I take judicial notice of the medical report on the child prepared by Dr. Jacinta Dora in which she made the following observations: “Both her inner thighs were slightly swollen and a bit red and tender on palpation.”
10. She went on to describe the victim’s female genitalia as red and swollen with yellowish and slight offensive discharge. She described the skin as inflamed with sores and blisters. When a specimen was collected, it tested positive for neisserrhea gonorrhea, a sexually transmitted disease. Your actions have not only wounded her innocency but also caused physical harm unheard of in little children, unless it was something inherited and there is no evidence of that. The only logical conclusion is that it was contracted as a result of what you have done.
11. Those additional aggravating features in my respectful view would substantially increase the sentence by another four years.
12. On the other hand, I take note in your favour, the mitigating factors mentioned by your counsel. Of significance is your guilty plea for it not only saved court time and expense but saved the victim from having to relive and recount the trauma, disgrace and embarrassment she had been through if she were required to give evidence. Of significance as well to note is the fact it would have been quite difficult to have such a child of tender years to be required to go through the drama of having to give evidence under oath and be subjected to cross examination etc., a difficult task in itself by any standard for the victim, for the court and counsels. You have by this guilty plea shown mercy and understanding towards the victim and I give credit for that.
13. As well, it shows remorse on your part, that you are sorry for what has happened. This is important as a first step for change, reformation and rehabilitation and being able to start anew and move on in life. This is important for your future prospects, learning from your past faults, failures and shortcomings, making adjustments and redirecting your life for the better, not only for yourself but for your family and community.
14. I note too in your favour, that this was a one off incident, not repeated and that it did not involve any other elements of violence or threats. I take into account, that this is your first time in court and that you have no previous convictions.
15. The courts have duty to protect the helpless, the weak and those without a voice, by ensuring that an immediate custodial sentence is to be imposed in this type of offending. The issue in sentencing in your case is in determining the appropriate sentence to impose.
16. Taking all your mitigating factors into account, in particular your guilty plea and balancing the aggravating features in the case, I deduct three years, which brings the overall sentence of four years to be imposed. I am satisfied too that this adequately reflects the principles of retribution, deterrence, prevention and rehabilitation. The period spent in custody is to be deducted from the sentence imposed. You have a right of appeal if aggrieved by this sentence.

Orders of the Court:

1. Enter conviction for the offence of indecent assault and impose sentence of 4 years.
2. The period spent in custody is to be deducted from your sentence.

The Court.