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R v Saito [2019] SBHC 108; HCSI-CRC 482 of 2017 (13 March 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 482 of 2017

REGINA

V

MASAO SAITO

Date of Hearing: 23, 29-31 January 2018, 1, 2, 9, 112-14, 16, 27 February 2018, 3, 9-11 April 2018, 10 May 2018
Date of Judgment: 13 March 2019

For the Crown: Mrs. Sirepu Ramosaea and Ms Freliz Fakarii Counsel assisting
For Defence: Mr. M Pitakaka and Ms. Mereta Tahu Counsel assisting.

Palmer CJ.

1. The accused, Masao Saito is charged with 15 counts of sexual offences under the recent Penal Code (Amendment)(Sexual Offences) Act 2016 (“the Penal Code Amendment Act”) as follows:
   1. One count of possession of child exploitation material contrary to section 144(3) of the Penal Code (Amendment)(Sexual Offences) Act 2016;
   2. Six counts of procuration, contrary to section 141(2) of the Penal Code (Amendment)(Sexual Offences) Act 2016;
   3. One count of procuration, contrary to section 141(1) of the Penal Code (Amendment)(Sexual Offences) Act 2016;
   4. Four counts of procuration, contrary to section 141(1) of the Penal Code (Amendment)(Sexual Offences) Act 2016 and soliciting contrary to section 381 of the Penal Code; and
   5. Three counts of sexual intercourse with child under the age of 15, contrary to section 139(1)(b) of the Penal Code (Amendment)(Sexual Offences) Act 2016.
2. The particulars of those offences read as follows:
   • Count 1: That Masao Saito of Japan, on the 27^th November 2016 at Honiara in the Guadalcanal Province, possessed video records (digital photographs) of child exploitation material of unnamed children on his Sony Laptop.
   • Count 2: That Masao Saito of Japan, between 1^st and 30^th September 2016, at Honiara in the Guadalcanal Province, procured one Unity Hane to provide commercial sexual service in Solomon Islands.
   • Count 3: That Masao Saito of Japan, between 1^st and 24^th October 2016, at Honiara in the Guadalcanal Province, procured one Unity Hane to provide commercial sexual service in Solomon Islands.
   • Count 4: That Masao Saito of Japan, between 25^th and 26^th October 2016, at Honiara in the Guadalcanal Province, procured one Unity Hane to provide commercial sexual service in Solomon Islands.
   • Count 5: That Masao Saito of Japan, on an unknown date between 20 August and 15 October 2016, at Honiara in the Guadalcanal Province, procured Monica Kimi to provide commercial sexual services in Solomon Islands.
   • Count 6: That Masao Saito of Japan, on an unknown date between 20 August and 15 October 2016, at Honiara in the Guadalcanal Province, procured Monica Kimi to provide commercial sexual services in Solomon Islands.
   • Count 7: That Masao Saito of Japan, on 23 November 2016, at Honiara in the Guadalcanal Province, did procure Monica Kimi to provide commercial sexual service in Solomon Islands.
   • Count 8: That Masao Saito of Japan, on 9 June 2016, at Honiara in the Guadalcanal Province, did procure Krisenta Lake to perform an indecent act with her.
   • Count 9: That Masao Saito of Japan, being at Honiara, in the Guadalcanal Province, on an unknown date between 1 August and 14 September 2016 did attempt to procure a child to perform an indecent act with himself in Honiara by soliciting and engaging in communication with an adult male namely, Robinson Talo at Break-Water Café, Honiara in the Guadalcanal Province.
   • Count 10: That Masao Saito of Japan, being at Honiara, in the Guadalcanal Province, on 14 September 2016 did attempt to procure a child to perform an indecent act with himself in Honiara by soliciting and engaging in communication with an adult male namely, Hicks Honiamae at Karaina Community, Honiara in the Guadalcanal Province.
   • Count 11: That Masao Saito of Japan, being at Honiara, in the Guadalcanal Province, on 16 September 2016 did attempt to procure a child to perform an indecent act with himself in Honiara by soliciting and engaging in communication with an adult male namely, Richard Ham at Honiara in the Guadalcanal Province.
   • Count 12: That Masao Saito of Japan, being at Honiara, in the Guadalcanal Province, on 22 September 2016 did attempt to procure a child to perform an indecent act with himself in Honiara by soliciting and engaging in communication with an adult male namely, Luke Maemou at White River, Honiara in the Guadalcanal Province.
   • Count 13: That Masao Saito of Japan, at Honiara, in the Guadalcanal Province, on 19 June 2016 did have sexual intercourse with a 13 year old girl namely Lavinia Tavake.
   • Count 14: That Masao Saito of Japan, at Honiara, in the Guadalcanal Province, on 20 June 2016 did have sexual intercourse with a 13 year old girl namely Lavinia Tavake.
   • Count 15: That Masao Saito of Japan, at Honiara, in the Guadalcanal Province, between 20 June and 30 July 2016 did have sexual intercourse with a 13 year old girl namely Lavinia Tavake.
3. The defendant entered not guilty pleas on all 15 counts and a trial was held accordingly.

The case for prosecution.

4. The prosecution’s case is summed up in their written submissions on the case filed on 25 May 2018. It is alleged that the defendant is a person who is sexually attracted to little girls and the offences for which he has been charged with arose from this abnormal attraction. These range from possession of indecent photographs or images of little girls, to various unlawful sexual related activities as set out in more detail in the various charges he had been charged with.
5. Prosecution called a total of 28 witnesses and tendered the following exhibits:

The defence case:

The defence case:

6. Apart from the not guilty pleas that had been entered on all charges, the defence is specific to each charge and accordingly these will be considered separately to determine if an offence has been committed or not.

Count 1 – Possession of child exploitation material.

7. This relates to 14 images of nude or naked children which have been tendered and marked as Exhibit F. The defendant admits taking those photos. They were photos of naked children (girls) playing and swimming around the Karaina community area at White River. The defendant had been seen taking photos around the area by witnesses who saw him there on several occasions.
8. In his defence, the defendant says that he did not know that taking those photos were prohibited. He told the court that he was taking photos around the vicinity and when he noticed those children playing and swimming without wearing any clothes, he took their photos.
9. What is clear and is not disputed, is that those photos were taken without any manipulation, control or influence being exerted by this defendant on the little children, who were at that particular time playing in their natural environment.
10. Mr. Pitakaka for the defendant, submits in his defence that even if all the elements of the offence have been proved, his client relies on the defence of reasonable and honest mistake as set out in section 10 of the Penal Code.

The elements of the offence.

11. Section 144(3) of the Penal Code (Amendment)(Sexual Offences) Act 2016 states:
    • “A person commits an offence if the person possesses, distributes, makes available for access, produces, sells or offers or advertises for distribution, sale, import or export child exploitation material.”
12. The definition of “child exploitation material” is set out in section 144(1)(a), as follows:
    • “In this section: “child exploitation material” means material:
    • (a) that depicts or describes, in a way that a reasonable person would regard as being, in all the circumstances, offensive:
    • ...
    • “(v) the sexual parts of a child”.
13. The elements of the offence can be broken down into three parts as follows:
    • (i) A person;
    • (ii) Possesses child exploitation material; and
    • (iii) Material consisting of child exploitation material.
14. In terms of the identity of the person or offender, the defendant in the charge, that is not in dispute. In terms of the second element, the defendant concedes that the Sony laptop in which the images were found belonged to him and so was in possession of the photos found in his laptop. These consisted of 14 images which have been printed out and marked as Exhibit F.
15. In terms of the third element, it seems that this is where the issue arises in terms of whether they amounted to child exploitation material.

Did the photos of naked children amount to child exploitation material?

16. The photos consisted of naked images of children. Some of the photos had zoomed in on the private parts of a child and in others had been cropped to contain only certain parts of the front sexual parts of a child, while squatting or standing.
17. In his defence learned Counsel Mr. Pitakaka seeks to raise the defence of section 10 of the Penal Code as applying to the circumstances of the defendant in this instance.
18. That section states:
    • “A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
    • The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”
19. The defence argument follows that he took the photos of the children while playing and did not know that it was wrong for him to take their photos. He did this while also taking photos of the environment and scenario around them.
20. This submission of honest and reasonable mistake under section 10 of the Penal Code in my view however, has been misconceived, assuming that it can act as a defence to the offence, which as correctly conceded by learned Counsel for the defendant to be a strict liability offence. This means that once the elements have been proven, the offence is complete, intent being inferred^[1].
21. The flaw in the argument of the defence is in assuming that where the reason or motive for taking those photos was based on an honest and reasonable but mistaken belief, that it necessarily follows that this is sufficient defence to the subsequent offence of possession of child exploitation material.
22. Having raised the defence it is incumbent upon the defence to produce or provide some material that sufficiently supports such belief and for prosecution to prove beyond reasonable doubt that there was no such honest and reasonable but mistaken belief.
23. I am more than satisfied however, that any such defence raised had been proven not to hold any water or of any substance, for the materials obtained and depicted by those images, can only be described as offensive. There is nothing to suggest that those photos were honestly and reasonably retained for innocent purposes, aesthetic, medical or any other logical reason other than to exploit their images for immoral or wrong purposes.
24. It is clear they had been manipulated and adjusted to depict photos of the frontal private parts of a female child, which no reasonable person would consider as normal and not offensive. While they were not invasive and there is no evidence that the children had been manipulated or controlled to pose in any sexually explicit manner, they became offensive when only certain parts were photographed. The offence arises where the photos depict or describe in a way which a reasonable person would regard as being offensive in all the circumstances.
25. I am satisfied prosecution have established the burden on this charge and find him guilty of count 1 of possession of child exploitation material.

Counts 2, 3 and 4 – Procuration of a person for commercial sexual services.

26. The offences set out in those charges relate to sexual activity between the defendant and Unity Hane (“PW8”), on three separate occasions. It is not in dispute that on those three occasions the defendant had sexual intercourse with PW8.
27. The prosecution submits that those occasions were procured by the defendant for the purpose of commercial sexual activity, whilst the defence argued that these were engaged in voluntarily by PW8 without any form of procuration for illicit commercial purposes.

The elements of the offence.

28. Section 141(2) of the Penal Code (Amendment)(Sexual Offences) Act 2016 provides:
    • “A person commits an offence if the person procures or attempts to procure a person to provide commercial sexual services, either in Solomon Islands or elsewhere.”
29. The three parts for proof of this offence are:
    • (i) A person procures or attempts to procure a person;
    • (ii) To provide commercial sexual services;
    • (iii) In Solomon Islands or elsewhere.

The element of procure.

30. In the case of R v Broadfoot^[2], referred to by learned Counsel Mr. Pitakaka in his submissions, Cusack J. observed: “...to procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking appropriate steps to produce that happening....”
31. In the case of R v Castiglione^[3] it was held that the word “procure” meant to persuade, induce or influence. In R v. Pikos^[4] Smith J ruled that two of the elements in the offence in Victoria were (at 90):
    • “That the accused took some action, whether in the form of pressure, persuasion, inducement, proposal or otherwise, which influenced the mind of the woman and caused her to have the carnal connection in question; and, lastly, that the accused did what he did with the intention of producing that result.”
32. In R v Broadfoot (ibid), Cusack J accepted that there was nothing wrong with the use of the word “recruit” to describe the word “procure”.

The definition of commercial sexual services.

33. The words “commercial sexual services” are defined in section 136 of the Penal Code (Amendment) (Sexual Offences) Act 2016 as: “means sexual services provided in return for financial or other reward, whether or not the reward is actually received by the person providing the sexual services or by another person”.
34. It is important to appreciate that the word “commercial” is what distinguishes this offence from any other form of “sexual activity or service”. The word “commercial” is not an ordinary word used in common parlance or talk. Whenever it is used, it denotes and necessarily implies some form of “commercial activity”, that is, matters related to or having something to do with business enterprise, and or business dealings and transactions, which entail financial or other gain and profit in the “business sense”.
35. The word “commercial” is defined in Black’s Law Dictionary, sixth edition as: “Relates to or is connected with trade and traffic or commerce in general: is occupied with business and commerce. Generic term for most all aspects of buying and selling.”
36. The Collins Dictionary defines it as: “Commercial means involving or relating to the buying and selling of goods.”
37. The Longman Dictionary of Contemporary English, defines it as: “related to business and the buying and selling of goods and services; the top priorities must be profit and commercial growth.”
38. The use of the word therefore in this offence, in my respectful view brings out or distinguishes this offence from other types of sexual activity. In other words, it should necessarily be related to some form of trade, business, commerce or trafficking, in sexual activities for profit or financial reward or gain.
39. The onus therefore is on the prosecution to prove beyond reasonable doubt that the defendant was involved in the procurement of commercial sexual services when he had sex with the victim.
40. Some relevant questions therefore that will need to be considered when dealing with the specific charges raised in this case are:
    • (i) Is the defendant involved in the business of making profit or financial gain or reward through the procurement of commercial sexual services?
    • (ii) Is the girl (victim/complainant) in the business of making profit or financial gain or reward through providing commercial sexual services, whether to herself or others?

The evidence in relation to counts 2, 3 and 4.

41. In order for the offence in count 1 as set out in section 141(2) to be complete, prosecution is obliged to prove beyond reasonable doubt, not only that there is evidence of procuring but that it was for commercial sexual services in Solomon Islands or elsewhere.
42. In relation to the first part, is there evidence that the defendant sought to persuade, induce or influence PW8 in one form or another, to provide commercial sexual services for him for reward, financial gain or benefit. To use the words in R v. Pikos^[5] by Smith J, did the defendant “took some action, whether in the form of pressure, persuasion, inducement, proposal or otherwise”, which influenced the mind of PW8, and caused her to participate in sexual intercourse with him on those three separate occasions for financial reward, gain or benefit.
43. I have had the opportunity to carefully consider the evidence adduced by prosecution and come to the following conclusions. I find that the relationship between the defendant and PW8 was based more on mutual friendship and understanding. I find that their interactions, amply supported by evidentiary material, to be based primarily on consensual agreement and voluntariness on their part to have sexual relations with each other, rather than on any commercial or business arrangement, or agreement for financial reward, gain or profit by any of them. I find no evidence to suggest that the defendant applied any form of pressure, persuasion or inducement to PW8 for commercial sexual services and certainly, no evidence of financial reward, gain or profit exchanged or transacted.
44. To the contrary, the undisputed evidence adduced showed PW8 was a willing and voluntary participant for sexual activity with the defendant on those occasions. On each of those occasions when she was invited by the defendant to attend at his premises, there was no promise or evidence of any form of financial reward, gain or benefit to provide sexual services. Any payments of money given to PW8, were more for transport for taxi or bus fares and nothing about payments for providing sexual services. The witness, PW8 when asked in cross examination by learned Counsel, Mr. Pitakaka, denied asking for any payment or reward for their sexual encounters. If there was any request it was confined to transport needs.
45. The evidence also showed, that on each occasion, they had dinner together before having sex, and the witness spending the night with the defendant before leaving on the next day. She only decided not to continue with the relationship when she had a new boyfriend.
46. I am not satisfied prosecution had discharged the onus placed on them to prove that the defendant had procured PW8 to provide commercial sexual services and should be acquitted therewith of those three counts.

Counts 5, 6 and 7 – Procuration of a person for commercial sexual services.

47. These offences relate to sexual activities on three separate occasions between the defendant and Monica Kimi (“PW24”). It is not denied that sexual intercourse occurred between the two. What is denied by the defence is that these were procured for commercial sexual services that is, pursued in the strict commercial sense, of any business activity or agreement, involving payments or exchanges of some form of financial reward, gain or for profit.
48. Four prosecution witnesses were called in support of those three counts, namely, Delma John (“DJ”), Raelyn Solteko (“RS”) and Robinson Talo (“PW9”). I will deal with each count separately herewith.

Count 5.

49. Count 5 relates to events which occurred on an unknown date between 20 August 2016 and 15 October 2016 in which it was alleged the defendant procured PW24 to provide commercial sexual services in Solomon Islands or elsewhere.
50. I find the following facts in respect of this charge as not being disputed.
    • (i) It is not disputed that witness PW9 together with another person, a friend of his, Paterson Maegonia (“Paterson”) arranged with witness DJ and RS to find and bring a girl to the defendant.
    • (ii) Secondly, the defendant had requested that PW9 find him a girl around the age of 10 years and bring to him.
    • (iii) Thirdly, on that particular day, PW24 was brought to the defendant. She is the niece of one of the witnesses, RS.
    • (iv) Fourthly, when PW24 was brought to the defendant, they falsely represented to him that she was 12 years old, when in fact she was around 20 years old. Her body frame was small and so it appears they deliberately sought to mislead him about her age that she was younger.
    • (v) On that occasion the defendant took down the age and the mobile contact number of PW24.
51. The two main elements for proof in respect of counts 5, 6 and 7 are also the same as in counts 2, 3 and 4, that is, (i) proof of the element of procuring; and (ii) proof of the provision of commercial sexual services for financial or other reward in Solomon Islands.
52. Did the defendant procure the girl, PW24 to provide commercial sexual services in Solomon Islands? Did he persuade, induce, or influence her in the circumstances of this case? It is pertinent to note in this case, the intervention or more accurately, the involvement of a third party or persons, four in total, PW9, Patterson, DJ and RS. Without their involvement and participation, the element of procuring would not have been possible or done. They formed the vital nexus to the offence of procuring. It is however also pertinent to note, that none of those four persons have been charged together with the defendant as persons who aided and assisted him to procure PW24. The girl was brought to the defendant in the first place by those four persons, who acted in consort together.
53. On this particular occasion, the evidence is clear, they collaborated and colluded together even to the extent of lying to her, that they were going to the beach to have some drinks and if she was interested to accompany them. They however took her to see the defendant instead at the Tandai Motel. If they had not acted nothing would have come out. They formed that essential link to the element of procuring.
54. The acteus reus of the offence of procuring was not done by the defendant but by someone else. He merely expressed his views or plans to PW9 and it was him together with the others who carried them out. They would therefore have been equally responsible for the element of procuring.
55. I am not satisfied accordingly on the evidence before me that the element of procuring against the defendant had been established.

Provision of commercial sexual services for gain or reward.

56. This brings me to consider the second element of proof, that being, to provide “commercial sexual services” in Solomon Islands or elsewhere. Even if it is assumed that he, the defendant had procured PW24, it is still necessary for prosecution to prove beyond reasonable doubt, that it was for commercial sexual services, that is, for business, trade, gain or profit.
57. The evidence adduced in relation to this can be summarised as follows. The witness PW9 had told the court that he received $150.00 after bringing PW24 and introducing her to the defendant. He was promised another $150.00 by the defendant for his taxi fare when he returned to collect or pick her up afterwards.
58. In other conversations heard, the witness DJ told the court that she heard mention of some $5,000.00, which they were planning to get from the defendant after introducing the girl to him. She was aware they were planning to lie to him about the girl’s age.
59. In her evidence, RS told the court that she was asked to bring a girl of 10 years for a Japanese man and then to demand a sum of $5,000.00 from him. In cross examination, she told the court that the man Paterson told her to tell the girl to demand that money from him but she told him that they were not going to do it. I am satisfied no such demand or request was ever made to the defendant for introducing PW24 to him.
60. This is consistent with the fact that there is no evidence of any demand or request for payment made to the defendant by anyone of them, including the girl herself.
61. The third witness RS, told the court that the only money she received was $150.00 which was given to her by PW9. No other payment was received.
62. In her evidence, PW24, told the court of the encounters she had with the defendant. She told the court at their first meeting, after she had been introduced to the defendant and the others had left, he took a photo of them together but then when she received a phone call from her boyfriend she decided to leave. She lied to the defendant however that it was her mother who had called. No sexual intercourse took place at that first meeting.
63. She told the court that after this introduction she went to see the defendant on another occasion after he had rang her and asked her to come to him. She caught a cab and went down to see him in his room. They had sex on this occasion and afterwards she left. The only money which exchanged hands at that time was $150 for her taxi fare. She told the court she did not tell the man anything after she left.

Decision.

64. After reviewing the evidence of payments of money received and the form of payments, I am unable to accept the submission that these constitute payment for commercial sexual services. There is no evidence of any agreement or business transaction made with any person, including PW24 for financial gain, profit or reward.
65. To the contrary, the evidence depicts a separate and private incident which the defendant had with PW24 to have sex with her, and which she willing and voluntarily participated in. There is an absence of evidence of any form of coercion, force, pressure or any other inappropriate pressure applied, other than a phone call to meet him at his room at the hotel, which she readily accepted of her own freewill and volition without any form of promises for payment or exchange of any money for sex. There is no evidence of any form of commercial relationship or business dealing in that sexual encounter. Even if it is to be considered together with the other two counts, the essential ingredient of a business relationship or transaction in those sexual encounters I find to be missing or absent.
66. In cross examination, PW24 denied any suggestions that she is a prostitute or a girl engaged in any sexual enterprises for a living or business. I am satisfied prosecution have failed to prove this important element and the charge should be dismissed. The defendant is acquitted of this count.

Count 6.

67. This count relates to an allegation that on an unknown date between August 20 and October 15, 2016 at Honiara, the defendant procured PW24 to provide commercial sexual services in Solomon Islands.
68. This count can be shortly disposed of. The un-contradicted evidence from PW24 is that she attended at the room of the defendant for the third time when he called her and asked her to meet him on a day in the afternoon between 1:00 – 2:00 pm. On receipt of his call, she went to meet him and have sexual intercourse with him. She told the court she was a bit drunk at that time having had some drinks with her boyfriend earlier that day. After the sexual encounter, he gave her $150.00 and she left. In cross examination she told the court the money received was for taxi fare. She denied asking for any money at all from the defendant.
69. I am satisfied that prosecution have also failed to prove that this sexual encounter was for any commercial sexual activity or arrangement and the defendant must also be acquitted.

Count 7.

70. This related to an allegation that on November 23 2016, at Honiara the defendant did procure PW24 to provide commercial sexual services in Solomon Islands.
71. This count can also be shortly disposed of. On this occasion, the defendant asked PW24 to see him as he had brought a gift for her. On arrival he gave her the gift and apologised for making her to think that he had taken any videos of them having sex in the second sexual encounter. They then had sex together, he gave her $150.00 and she left. She told the court that he told her to have a bath after but when her boyfriend rang she decided to take her bath back at her home.
72. Again I am not satisfied that prosecution have discharged the onus placed on them in respect of this matter and he must also be acquitted of this count.

Count 8:

73. Count 8 recites that the defendant on June 9, 2016 did procure KL (“PW5”) to perform an indecent act with her. Section 141(1) of the Penal Code (Amendment) (Sexual Offences) Act 2016 provides:
    • “A person commits an offence if the person procures or attempts to procure a child to perform an indecent act or to have sexual intercourse with another person, either in Solomon Islands or elsewhere.”
74. This count arises from the actions of the defendant in relation to the child PW5, when he got permission from her mother / aunty to take her to the shops to buy her a present. On this occasion, they went to the shop where he bought some clothes (a shirt, a skirt and underpants) for her, took her to his room, where he told her to try the clothes he had bought for her. She only tried the skirt by wearing it over her clothes. She then sat beside him on the bed and he took photos of them sitting together, with his arms around the little girl. After this, he took her back to her home.
75. The issue for determination in relation to this encounter is whether the actions of getting the child to his room, having her wear her skirt over her dress and sitting beside him to take a photo amounted to an indecent act.
76. Section 136B of the Penal Code (Amendment) (Sexual Offences) Act 2016, defines “indecent act” as follows:
    • “(1) In this Part, “indecent act” means an act of a sexual nature (including a person touching themselves in a sexual way or forcing another person to touch themselves in a sexual way), other than sexual intercourse, which a reasonable person would consider to be contrary to community standards of decency.
    • (2) Without limiting subsection (1), an indecent act may be committed:
      • (a) by way of gestures or words; or
      • (b) by conveying words or images.”
77. Did those actions of the defendant amount to the performance of an indecent act? It is important to note that the central feature in the meaning of an “indecent act” in this offence is that it is necessarily that of a sexual nature. To that extend it is the duty of prosecution to prove beyond reasonable doubt that the actions of the defendant or what transpired at the hotel room in relation to PW5, were essentially sexual in nature and amounted to an indecent act.
78. Having carefully considered the evidence and the material before me, I am not satisfied, that onus or burden had been discharged. While the actions of the defendant were perhaps wrong, improper and contrary to what is expected of him, in taking the child to his room without the mother’s permission or, without being in the company of an adult, what transpired therein, according to the evidence adduced, was not of a sexual nature or, go beyond what would be regarded as of an indecent nature. Accordingly, the defendant must also be acquitted of this charge.

Counts 9, 10, 11 and 12.

79. The defendant is charged with four counts of attempting to procure a child to perform an indecent act with himself in Honiara by soliciting and engaging in communication with four persons, Robinson Talo (“PW9”), Hicks Honimae (“HH”), Richard Ham (“RH”) and Luke Maemou (“LM”). The prosecution case is that the offences arose from the combination of reading together section 141(1) of the Penal Code (Amendment) (Sexual Offences) Act 2016 with section 381 of the Penal Code.
80. More specifically, the offences alleged to have been committed under those sections were that the defendant on four separate occasions as stipulated in the counts, attempted to procure a child to perform an indecent act with himself by soliciting and engaging in communication with four different adults on those occasions.
81. The relevant part of section 141(1) of the Penal Code (Amendment) (Sexual Offences) Act 2016 (“the Penal Code Amendment Act 2016”) provides:
    • “A person commits an offence if the person ... attempts to procure a child to perform an indecent act or to have sexual intercourse with another person, either in Solomon Islands or elsewhere.”
82. The offence alleged to have been committed under section 141(1) of the Penal Code Amendment Act 2016 is in relation to the offence of an attempt to procure a child to perform an indecent act or to have sexual intercourse with another person in Solomon Islands or elsewhere. It is important to keep in mind that this is a separate offence that needs to be proven to the required standard.
83. The specific offence of soliciting or inciting others to commit an offence in Solomon Islands or elsewhere is set out in section 381 of the Penal Code as follows:
    • “381. Any person who solicits or incites or attempts to procure another to do any act, or make any omission, whether in Solomon Islands or elsewhere, of such a nature that, if the act were done or the omission were made, an offence would thereby be committed, under the laws of Solomon Islands or the laws in force in the place where the act or omission is proposed to be done or made, whether by himself or by that other person, is guilty of an offence of the same kind and shall be liable to the same punishment as if he had himself attempted to do the same act or make the same omission in Solomon Islands:
    • Provided that if the act or omission is proposed to be done or made at a place not in Solomon Islands, the punishment shall not exceed that which he would have incurred under the laws in force where the act or omission was proposed to be done or made, if he had himself attempted to do the proposed act or make the proposed omission:
    • Provided also that, in the last-mentioned case, a prosecution shall not be instituted except at the request of the Government of the State having jurisdiction in the place where the act or omission was proposed to be done or made.”
84. There are two parts to be proven beyond reasonable doubt under this series of offences he had been charged with. First is the need to prove that an offence would have been committed under section 141(1) of the Penal Code Amendment Act 2016. In other words, prosecution is obliged to prove that the defendant had attempted to procure a child (to be identified) to perform an indecent act with himself on the said date(s).
85. Secondly, prosecution is obliged to prove that the defendant solicited another person (to be identified) to commit an offence, namely that set out in section 141(1) of the Penal Code Amendment Act 2016.

The evidence as it relates to count 9.

86. The evidence in relation to this count can be summarised as follows. That the defendant had communicated his desire or intention to one Robinson Talo (“PW9”) to meet or see little girls around the age of 10 years old for friendship and kissing. He told PW9 to find little girls for him.
87. It is also not in dispute that on two separate occasions PW9 had brought two girls to meet with the defendant, one was MT, who was about 17 years old and another FK who was about 16 years old. On both occasions, PW9 told the court he had lied to the defendant about the age of the two girls. In both instances, the defendant had not accepted them.
88. In cross examination the defendant told the court that he did not accept the girls because they smoked, chewed betel nut and were not pretty.
89. The third “girl”, Iris sought to be introduced however, was an imaginary one, not a real person, and the matter not pursued thereafter, although there were communications about having that girl to meet up with the defendant.

The element of “procuring”.

90. Did the defendant attempt to procure a child to perform an indecent act with himself in Honiara? Learned Counsel Mr. Pitakaka for the defendant argues that the charge is defective from the outset for want of specificity in that counts 9, 10, 11 and 12 did not identify the victim or child in each of those charges.
91. Having considered his submissions on this point, I concur with his submission for by necessity an offence only becomes effective when it identifies its victim. When the offence is generalised as in this instance, it becomes a meaningless charge. For the defendant to know what he is up against, the name or identity of the victim must be stated in the charge. It is my finding that in order for those charges to be effective they had to go further and specify the identity of the victim that was alleged to have been procured for unlawful activities by the defendant. The defendant needs to know what he has been charged with or what the offence is so that he can defend himself properly.
92. While I note that under count 9, the evidence talks about two girls, MT and FK, while the third girl Iris is not a real person, an imaginary person, the prosecution is still obliged to identify in the charge the name of the girl for which he had been charged with.
93. I accept submissions of learned Counsel that on that ground alone, those four counts must fail.

The offence of attempt.

94. There is one further argument raised by Counsel for the Defence in relation to those four counts on the issue of attempt. Learned Counsel argues that it is for prosecution to prove beyond reasonable doubt that there was an attempt to commit the complete offence.
95. The word “attempt” is defined in section 378 of the Penal Code as: “When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.”
96. In the case of Namona v. Regina^[6], referred to by Counsel Pitakaka in his submissions, Ward CJ in giving guidance and interpretation of the said section 378 (which was section 371 then), cited with approval the proposition in R. v. Eagleton^[7], that “acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it but acts immediately connected with it are.”
97. His Lordship Ward CJ also cited with approval the case of DPP v. Stonehouse^[8] where Lord Diplock states: “The constituent elements of the inchoate crime of an attempt are a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence. Acts that are merely preparatory to the commission of the offence, such as, in the instant case, the taking out of the insurance policies, are not sufficiently proximate to constitute an attempt. They do not indicate a fixed irrevocable intention to go on to commit the complete offence unless involuntarily prevented from doing so.”
98. Mr. Pitakaka submits that the approach taken in Namona v. Regina by Ward CJ should be followed in the present case. He submits that the allegation of the accused soliciting PW9 to arrange 9-10 year old girls for him were not acts sufficiently proximate to the complete offence set out in section 141(1) of the Penal Code Amendment Act 2016, but were merely preparatory to the commission of the offence and were not sufficiently proximate to amount to the offence of an attempt.

Did the defendant attempt to procure a child to perform an indecent act with himself?

99. The way the charges had been framed is confusing, however, when one considers it carefully, it is evident prosecution need to prove two things; first, the offence of an attempt and secondly, the offence of soliciting.
100. What is the evidence which prosecution allege prove that an attempt to procure had been committed by the defendant? The evidence in relation to count 9 for instance, is that he had asked PW9 to arrange girls for him. The witness PW9 in turn had sought to procure or secure two girls, MT and FK initially to meet the defendant. Nothing further happened thereafter for the arrangement or attempt to procure either of those girls was rejected or declined by the defendant for various reasons.
101. This raises the next question as to whether this arrangement or actions were sufficiently proximate to the complete offence and demonstrative of the intention of the defendant to commit the complete offence. Having carefully considered the evidence, I am not satisfied the arrangement made were sufficiently proximate to the offence of attempt to commit an indecent act with himself, but rather were mere preparatory acts, which did not go further. I am not satisfied they were acts immediately connected to the complete offence of committing an indecent act with a child.
102. It is pertinent to note as well that the act of procuring was not done by the defendant alone but by other persons named in the indictment. Under count 9, it was PW9, in count 10, it was Hicks Honimae (“HH”), in count 11, it was Richard Ham (“RH”) and in count 12, it was Luke Maemou (“LM”). None of these persons however, had also been implicated or charged together with the defendant for commission of those offences or for attempts to commit those offences. The offences for which the defendant had been charged could not be completed or performed without assistance from those persons who helped him.
103. In count 9, PW9 had sought to assist him to procure girls for him. The arrangements however did not go far enough or beyond mere preparatory acts. When he made the decision not to accept the girls, nothing further came out of those arrangements that had made.
104. The arrangements in relation to the girl “Iris”, I find to be also merely preparatory and or remotely connected for there was no real person called “Iris” and nothing further happened in relation to that arrangement.

The offence of soliciting.

105. This brings me to consider the offence of soliciting for which the defendant had been charged with under those four counts.
106. The offence of soliciting in count 9 is necessarily linked or tied to the offence of attempting to procure a child to perform an indecent act with himself.
107. What is the definition of soliciting? The Cambridge Academic Content Dictionary defines the word “solicit” as follows:

“1. to ask someone for money;

2. to ask someone for information or help;

3. to contact possible customers in order to sell a product.”

108. The Collins English Dictionary defines the word “solicit” as:

“1. To make a request, application, or entreaty to (a person for business, support, etc);

2. To accost (a person) with an offer of sexual relations in return for money;

3. To provoke or incite (a person) to do something wrong or illegal.”

109. The Free Dictionary by Farlex defines the word “solicit” as inter alia: “appeal for, appeal to, apply, ask, ask earnestly, beseech, call for,.... make a request, ... petition, plead, press, request, supplicate, urge.”
110. Prosecution’s case can be summed up as follows, that the defendant solicited PW9 to attempt to procure a young girl of 10-12 years old for the defendant to commit an indecent act with the girl.
111. The evidence which emerged from the trial was that on two separate occasions PW9 had brought two girls on different occasions to the defendant but were refused or rejected by the defendant, whether it was because they were older, not pretty or acceptable, nothing further happened thereafter. In other words, the acts of “attempting” by PW9, stopped short of the complete offence. I am not satisfied therefore, they went far enough to satisfy the test of “sufficient proximity” or “immediate connection” to the complete offence; that is they were incomplete. They were remotely connected and merely preparatory steps taken towards the commission of the complete offence of an attempt to commit an indecent act with those two girls, for there was no such attempt.
112. It follows, where there has been an incomplete offence, the acts the defendant were charged being incomplete or merely preparatory, he cannot be separately charged for soliciting to commit an incomplete act. Accordingly, he should be acquitted of that charge.

Count 10:

113. This offence relates to communications the defendant had with one HH on or about 14 September 2016. The most those conversations amounted to were about his interest in little girls of around 10-11 years old. This witness conceded in cross examination that most of those communications or dialogue were made in the context of jokes and that he did not think they were seriously made, although the defendant did ask him to let him know if he found any girl.
114. For the same reasons set out in count 9 I find that his actions were remotely connected to the offence and not sufficiently proximate to the offence of soliciting and attempting to commit an indecent act with a child. What transpired between them remained at the level of mere communications and dialogue between them and did not translate to any further action or steps towards the completed offence. There was no girl mentioned or identified and so the matter did not even proceed to any attempt to procure a girl to perform any indecent act with the defendant. Nothing further came out of those conversations. Accordingly he should also be acquitted of this offence.

Count 11.

115. This count relates to the soliciting charge in respect of Richard Ham (“RH”) on or about the 16 September 2016. This count can also be shortly disposed of for it is similar to the factual scenario in count 10. RH was a taxi driver who through conversations with the defendant was told a similar story that the defendant was interested in small girls of around 10-11 years old.
116. The most which came out of this was when he told the defendant that there was a girl of 18 years old but the defendant was not interested.
117. I find the facts of this count to be also too remotely connected and of insufficient proximity to the completed offence. Apart from the conversations had, nothing further ensued from them. No attempt was made to procure any girl for the defendant. This count is also dismissed and the defendant acquitted.

Count 12.

118. This final count on soliciting relates to conversations this witness, Luke Maemou (“LK”) had with the defendant at White River on or about the 22^nd September 2016 at his friend’s house when they were having a BBQ. He met the defendant there and his friend asked him to assist the defendant to find young girls for him. He told the court that when he inquired further, the defendant told him that he was interested in girls around the age of 8-11 years old. The defendant told him to bring those girls to him. The defendant however, did not comply with the defendant’s request.
119. For the same reasons given above I am satisfied those conversations do not amount to actions that were sufficiently proximate or immediately connected to the completed offence. I am not satisfied prosecution had proven beyond reasonable doubt that those actions were more than preparatory and not remotely connected to the commission of the offence as set out in section 141(1) of the Penal Code Amendment Act 2016. The defendant is also acquitted of this offence.

Counts 13, 14 and 15.

120. Finally, these three counts, 13, 14 and 15 can be dealt with together as they relate to offences under section 139(1) (b) of the Penal Code (Amendment) Sexual Offences Act 2016. That section reads:

“(1) A person commits an offence if the person has sexual intercourse with a child who is under 15 years of age.

Maximum penalty: ...

(b) if the child is between 13 and 15 years of age – 15 years imprisonment.”

121. The offences charged relate to three occasions of sexual intercourse with PW16. The defendant does not deny that sexual intercourse occurred between him and the victim. What he disputes is the age of the victim and relies on the defence of mistaken belief in section 10 of the Penal Code, that she was between the ages of 16 – 17 years old at the time of the commission of the offence.
122. Section 10 of the Penal Code states:

“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

123. Mr. Pitakaka submits on those two grounds that the age of the victim had not been proven to the requisite standard, and secondly, even if that was the case, the defendant formed the mistaken belief that she was between 16-17 years old.

The evidence on age by prosecution.

124. The evidence in relation to her age came from the father, TT and the victim herself. The evidence of the father is in the form of a statement and marked Exhibit J. In his statement he says that the victim was born on the 31^st July 2002, at Vulavu Clinic, Isabel province, which would place her age at about 14 years old at the time of the commission of the offences.
125. The victim LT also gave evidence of her age. She told the court how she had been picked up as she was walking to White River to see some of her relatives by two unknown men but instead of taking her to where she was going they took her instead to the Tandai Motel and brought her to see the defendant. She was introduced to him and the man who brought her left her there.
126. She told the court the man asked for her name and age which he wrote down in a book. She told the court she told him she was 13 years old. She also told him where she lived, at Green Valley and he also wrote that down. After this they had sex together and before she left he gave her $200.00. He also gave her 6 beers to take to the men who had brought her to see the defendant. The men were waiting for her at the car park when she left.
127. On the second occasion she was accompanied by her girlfriend to go and see the defendant. She again had sex with the defendant, afterwards he gave her a t-shirt, her girl friend asked for a pair of socks which he gave to her. He gave them $50.00 bus fare and they left.
128. On the third occasion he went to see the defendant accompanied by her sister, who waited outside while they had sex together. Afterwards, he gave them taxi fare and they returned to Green Valley.
129. On the fourth occasion she went on her own without being invited, but was told that he was too busy. She left and has never been to see the defendant since.

Analysis of the evidence.

130. During cross examination, when the witness PW16 was asked if she was guessing when she said that her age was 14 years, she answered in the affirmative. When it was further suggested to her that she was 16-17 years old, she answered in the affirmative.
131. It was also put to her that when she went to see the defendant she lied to him and told him that her name was Jessica and she again answered in the affirmative. When it was also put to her that she had lied about where she lived, that at that time she was living at White River instead of Green Valley, she again answered in the affirmative.
132. In cross examination when it was put to her that she was not a virgin when they had sex together, she also answered in the affirmative.
133. She also confirmed in cross examination that when they had sex together, she consented on all occasions to have sex with him.

Evidence of the defendant on age of LT.

134. The evidence of the defendant on the age of PW16 when he was asked if he knew how old she was, he responded: “When I looked at her face and spoke with her I thought she was 16-17 years old.” When he was further asked why he thought her age was around 16-17 years old, he responded: “When I spoke with her, I said this is not a small girl but a mature girl.”
135. When he was asked if he wrote down the name and age of the girl, he denied this and said that it may have been Simon, the person who introduced the girl to him or the girl herself.
136. In cross examination when asked if PW16 was his girlfriend he maintained his view that she was his girlfriend. He also maintained that PW8 and PW24 were also his girlfriends.

Issue of age of PW16.

137. Has it been proven beyond reasonable doubt that PW16 was below the age of 15 years at the time of commission of offences? There are two sources of evidence on this from prosecution, one by the father who in his statement said that she was born on the 31^st July 2002 and the other from PW16 herself, who told the court she was born in 2002. When asked how she knew this, she responded that she heard this from her mother. In court however, when asked she was not sure of her age.
138. Is the evidence of the father sufficient to demonstrate proof? The father has not been required to be cross examined on this, rather defence had agreed to have his statement admitted in evidence and so impliedly not taking issue with his evidence of the birth date of PW16. I find accordingly his evidence in his statement to be proof, in the absence of any other material which defence have raised; noting that he and the mother of PW16 can give direct evidence of the birth date of their child.

Defence of mistaken belief, section 10 of the Penal Code.

139. This brings me to consider the defence raised of mistaken belief in the age of PW16. Did he have an honest and reasonable but mistaken belief that the girl was 16 – 17 years old and if so, had that been disproved by the prosecution beyond reasonable doubt?
140. The current amendment had excluded the proviso in the previous section on defilement raising a defence where there is reasonable cause to believe that the girl was of or above the age of fifteen years.
141. Learned Counsel Mr. Pitakaka however argues that section 10 of the Penal Code still applies for had the belief been true that would be a defence to him. I am satisfied the defendant is entitled to rely on section 10 of the Penal Code for a defence^[9].
142. As well, it is for the defence to raise the defence either in cross examination or otherwise but having raised it, the onus shifts to prosecution to disprove it beyond reasonable doubt. In the case of He Kaw Teh v. The Queen^[10], his honour, Dawson J. states:

“There is ...no justification for regarding the defence of honest and reasonable mistake as placing any special onus upon an accused who relies upon it. No doubt the burden of providing the necessary foundation will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principal must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities.”

143. Is there evidence that this defence had been raised either in cross examination or otherwise? The answer must be in the affirmative. During cross examination of PW16, learned Counsel, Mr. Pitakaka asked PW16 as follows:
     • Question: In your statement to the police you said that you do not know your birthday?
     • Answer: Yes.
     • Question: Today you said that when my friend asked how old you were you said that you were 14?
     • Answer: Yes.
     • Question: You are guessing?
     • Answer: Yes.
     • Question: I suggest to you that you are 16 – 17 years old?
     • Answer: Yes.”
144. It was also put to her that at the time she had sex with the defendant, she was not a virgin and she answered in the affirmative. She also agreed that she was a willing participant to the three occasions when he had sex with her. On the fourth occasion she went without being invited but this time the defendant told her that he was busy and did not see her. This was the last time she went to see him.
145. In his evidence given on oath, the defendant was asked the following relevant questions on this issue as follows:

“Question: Did Lavinia tell you how old she was?

Answer: Yes, maybe she stated it. But I did not like her age.

Question: Do you know how old she was?

Answer: When I looked at her face and spoke with her I thought she was 16-17 years old.

Question: Why do you think her age was 16-17 years old?

Answer: When I spoke with her, I said this is not a small girl but a mature girl.

Question: Can Exhibit I be shown to the witness? Can you see that name Lavinia written on that page?

Answer: This name I did not write it, maybe she or Simon.”

146. I am satisfied from the various questions raised and responses given, that sufficient evidence of an honest and reasonable, but mistaken belief that she was between 16-17 years old, had been raised by the defendant. These were based on his observations of the girl arising from his personal conversations and observations of the girl and forming his opinion that she was not only around 16-17 years old but a mature girl.
147. In cross examination, the girl conceded that she was not a virgin and was a willing participant to the sexual activity with the defendant. She also responded in cross examination that she was not sure of her age and that she was only guessing.
148. While noting on the other hand, that there was a notation in his notebook of the name of the girl and the number 13 written beside it, he denied writing it down.
149. It is also pertinent to keep in mind that there had been instances where the defendant had been introduced to girls who were supposedly 10-12 years old but were much older, although their body frame and appearance may have been small. In those instances, he had also formed the view that he thought they were much older. Another example of this was that of PW24, who was introduced to him as being of 12 years old but was at the time of the alleged offences was around 19-20 years old.
150. Having raised that defence of honest and reasonable but mistaken belief, the onus shifts back to the prosecution to disprove that evidence. Having carefully considered the evidence adduced and submissions of prosecution, I am not satisfied this has been disproved beyond reasonable doubt and accordingly the defendant is also entitled to be acquitted of all three charges in counts 13, 14 and 15.

Conclusion.

151. The final orders of the court should read as follows. I find him guilty of count 1 and convict him accordingly. For counts 2 – 15, I am not satisfied prosecution have proven beyond reasonable doubt that he is guilty and accordingly enter orders of not guilty and acquit him of all those charges.

ORDERS OF THE COURT:

1. Find the defendant Masao Saito guilty of count 1 of possession of child exploitation material and convict him accordingly.
2. Find the defendant Masao Saito not guilty of counts 2 – 15 and acquit him accordingly.

The Court.

^[1] Sweet v. Parsley [1969] UKHL 1; [1970] AC 132 and Gammon (Hong Kong) Limited, Yee Chin Teo and Chak Shing Mak v. Attorney General of Hong Kong, Privy Council Appeal No. 32 of 1983.
^[2] [1976] 3 All ER 753 at page 756
^[3] [1963] SR (NSW) 393; [1963] NSWR 1; (1963) 80 WN (NSW) 537 (CCA).
^[4] [1963] VR 89
^[5] [1963] VR 89
^[6] [1991] SBHC 11; HC-CRC 001 of 1991 (4 February 1991) (PACLII citation) per Ward CJ
^[7] [1843-1860] All ER 363 at 367 per Parker B
^[8] [1977] 2 All ER 909 at 917 per Lord Diplock
^[9] Tetkou Piasi v. Regina [2015] SBCA 18; SICOA – CRAC 12 of 2015 (9 October 2015)
^[10] [1985] HCA 43; [1985] 157 CLR 523 Dawson J at 592-593.