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R v Piako [2022] SBHC 87; HCSI-CRC 426 of 2020 (13 May 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 426 of 2020

REGINA

V

SELWYN PIAKO

Date of Sentence: 13 May 2022

Waletofea G C for the Crown
Kwalai D for the Defendant

SENTENCE

Maina PJ:
1. Introduction

Defendant Selwyn Piako was charged on one (1) count of incest contrary to sections 163 (2) (a) and of the Penal Code (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 and four (4) counts of incest contrary to sections 163 (2) (b) of the Penal Code (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.

On arraignment the Defendant pleaded guilty on all the charges and accordingly I convicted him upon his own pleas on the charges.

2. Maximum Penalty

The maximum penalties for the offence for 163 (2) (a) is life imprisonment and the under section 163 (2) (b) of the Penal Code (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016, the sentence is 10 years imprisonment.

3. Facts

Defendant Selwyn Piako is from Nou village, Santa Cruz Temotu Province and the Complainant is also from the same village in Temotu Province. The Complainant was born in 2006 and 12 years old in 2018 and 14 years old in 2020. The Defendant was 45 years old and above at the time of the offences.

The Complainant is the biological daughter of the Defendant. On several occasions, the mother swore at her daughter with the Defendant who is her father.

(i) First Incident (Count 1)

This incident happened on unknown date between 1^st and 31^st January 2018 when the Complainant was 12 years old.

On that day the Defendant had an argument with his wife on who should go to the garden at that time as the wife also insisted or wanted to go to the garden. The Defendant got angry and told his wife to stay at home.

Complainant then accompanied the Defendant to their garden area at Lata, Temotu Province. When they reached the garden in a leaf hut, the Defendant asked her daughter for sex. Complainant was afraid of him and so she removed her clothes and Defendant laid her on a bed inside the leaf hut. He then had sexual intercourse with her daughter. The daughter felt very painful in her vagina and she screamed. After the sexual intercourse with her father, she saw the blood on her vagina. Defendant told her daughter not to tell anyone

(ii) Second Incident (Count 2)

The incident happened on an unknown date between 1^st and 31^st January 2020 at Hon Commins Mewa’s residence at Panatina area, Honiara. Complainant had passed her exam and to continue her education at Tenakonga school and so she went and lived with his father (Defendant) at Hon Commins Mewa’s residence. They occupied a room at the house and that day Defendant asked her daughter to have sex and so she took off her clothes and they had sexual intercourse at the time.

(iii) Third Incident (Count 3)

The third incident occurred on an unknown date between 1^st and 31^st April 2020.

At that time Complainant was at Tenakonga School and it was announced that the school will be closing because of Covid-19. The Complainant then returned to Honiara and dropped off at her auntie’s place at Lunga area and wait to be picked by the Defendant. The father heard about her daughter and so he went, picked her daughter and took her to the Hon Commins Mewa’s residence.

At about the 12 midnight, the father had sexual intercourse with daughter and after that the incident she boarded a ship and went to Lata.

(iv) Fourth Incident (Count 4)

Complainant was at Lata and the Defendant wanted her to attend school at Lata Community High School but she did not want that and so the Defendant paid her airfares for the flight on 25^th May 2020. Complainant returned to Honiara on that day and the Defendant picked her at the airport and took her to Commins Mewa’s residence. On the same night she had arrived, the Defendant had sexual intercourse with the Complainant.

(v) Fifth Incident (Count 5)

On the 2^nd June 2020, the Complainant was with her father (Defendant) at the downstairs room which he was occupying at Commins Mewa’s residence at Panatina. On the night Complainant was wearing a stripe blue and white skirt and a red “T” shirt. The Defendant had sexual intercourse with her at the downstairs room.

These incidents was reported to the Police and Defendant arrested on 4^th June 2020. He was remanded on 5^th June 2020 and in custody until to date.

4. Serious nature of incest offence

The serious nature with the offence of incest is as described by sister judge Bird M in the case R v Bako [2021] SBHC 40; HCSI-CRC 165 of 2019 (28 May 2021) when she stated:

“The offence of incest is very serious in nature because it intrudes into the privacy of the victim coupled with the fact that it infringes into the issue of trust within a family circle. To manifest its seriousness, the maximum sentence that is codified under our laws is one of life imprisonment”.

Further, these behaviours of certain individual brings or cause a shame and disgrace in the family, tribe, lines, communities etc. Funny behaviours or acts that seems to exist now in our communities is that while we claim or called the Solomon Islands a Christian country, the numerous cases of sexual nature do not reflect that claim at all.

5. Antecedent

The Crown submits that you were 45 years old and above when you committed the offences, married (children unknown) and have on previous conviction.

6. Aggravating Features

The Crown submits these as the aggravating features:

(a) Breach of trust: The Defendant is the Complainant’s biological father. He is in a position of trust towards the Complainant as being the father and the Complainant has trust and respect for him,
(b) The age disparity: The Complainant was 12 years old in 2018 at the first incident and 14 years old in 2020 when the Defendant was 45 years old and above, the difference of about 33 years and above,
(c) Preplanning: The Defendant offending’s with his insisting of going to the garden at Lata and when they were alone in his room at Panatina were replanned by the Defendant,
(d) The impact on the Complainant’s life: The physical and psychological impact on the Complainant from the offence is one that will affect for the rest of her life and the shame by the family,
(e) The Complainant was of a very young age of 12 years and 14 years old at the time of the offences and she was a vulnerable in the society; and
(f) The repetition of the offence. Defendant had sexual intercourse with his own daughter on five separate times.

Defence Counsels in his submission acknowledged the aggravating features when he stated that:

(a) the Defendant is the biological father of the Complainant and the breach trust vested upon him,
(b) the use of force and threat against the Complainant,
(c) the was under the age of 15 years when the offence was committed; and
(d) The age difference is 31 years that the Defendant was 45 years while the Complainant was 14.

7. Mitigation

Both the Crown and Defence counsels submitted on these matters for the court to take into account in the sentence. Defendant is the first offender and early plea of guilty on the five charges.

Defence counsel further submitted to take into account the cooperation by the Defendant with the Police investigation and the level of culpability or blame when his wife used foul languages, or on several occasions swore at her daughter with the Defendant who is her father. He said such and the Complainant’s explicit behaviour towards him had led him off being a responsible father.

The Defendant has accepted that he is wrong and had paid compensation of $3ooo.00 to Complainant relatives.

8. Analysis by the court

I noted the two last matters i.e. level of culpability and compensation raised as by the defence as the mitigation factors. However, with former it is not possible for me to accept the submission, not even a bit, as this is the act of a ridiculous or senseless man.

With the compensation being paid to the Complainant’s relatives, it cannot be a mitigating feature on the offending rather it may be or to normalise the relationship with the families and relatives.

The offending is very serious as proven or established on the maximum penalty of life imprisonment for the offence of incest.

Defendant is the father of the Complainant and being the father who owes the responsibility to look after and care of his daughter, provider of basic of the needs and the protector of her at all times. However, the father abused that trust expected by the daughter from him.

What the father had done to her daughter will be a scar and or impact on the lifetime of the Complainant. Noted also is these type of sexual offence’s prevalence in our communities.

It is noted from the cases coming before this court of this nature that the sentence is at the ranges of 5 -7 years’ imprisonment.

Taking into account the mitigating factors and aggravating features and the period already spent in custody for this case, the accused is accordingly sentence to 5 years imprisonment for each of the counts.

Orders of the court

1. Defendant Selwyn Piako is sentenced to:
   • (i) Count 1-5 years imprisonment,
   • (ii) Count 2- 5 years imprisonment,
   • (iii) Count 3- 5 years imprisonment,
   • (iv) Count 4- 5 years imprisonment,
   • (v) Count 5- 5 years imprisonment
2. Sentences on Counts 2, 3, 4 and 5 to be served concurrently to 1 and;
3. No further orders

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge