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R v Ramoniahia'a [2023] SBHC 138; HCSI-CRC 296 of 2023 (6 December 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 296 of 2023

REX

V

NIGEL RAMONIAHIA’A

Date of Hearing: 16 October 2023
Date of Sentence: 6 December 2023

Mrs P Waisanau for the Crown
Mr A Bosa for the Defendant

Sentencing after plea of guilty entered

Faukona DCJ: The Defendant, Mr. Nigel Ramoniaha’a was charged for the offence of Persistent Sexual Abuse of a child contrary to section 142 (2) and S.139(1) (b) of the Penal Code, as amended by the Penal Code (Amendment) Sexual Offences Act 2016.

2. The charge of persistent sexual abuse of a child is one though repetition or persisted by the Defendant on three occasions. The law has provided and describe as one offence.
3. The complainant is the step daughter of the Defendant. She was the first born child of the Defendant’s family. She was between (13) and (14) years of age at the time of offending. And the Defendant was forty (40) years.
4. The Defendant and his family lived at Wainarii village, Arosi 1, Makira Ulawa Province He is married with nine (9) children. The Complaint is his step daughter.
5. According to the Information, the Defendant had persistently abused her daughter, Miss Dalvina Kamantai on three different occasions.
6. The first occasion occurred on 2^nd June 2022. It was in the night in the family home when the complainant was sleeping with two other younger siblings. The defendant approached her and woke her up. The defendant told her not to make any noise or he will cut her with a bush knife She was frightened and so the defendant removed her clothes and had sexual intercourse with her by pushing his erected penis into her vagina. After satisfied the defendant then left.
7. The second occasion occurred on 10^th July 2022, when the defendant told his daughter, the complainant, to accompany him to their garden to collect some food, with her three other siblings. Whilst his other three children went to climb some betel nut, the defendant quickly pulled the complainant into a small bush near the garden and removed her clothes. He ordered her to lay down which she did. The defendant then had sexual intercourse with her by pushing his erected penis into her vagina until he was satisfied.
8. The third occasion occurred at night, on 6^th August 2022, whilst the complainant was sleeping in their house, the defendant approached her and woke her up. She woke up and saw her father, the defendant sitting down beside her on the bed. The defendant then fiddle with her nipples and then removed her trousers, clothes and had sexual intercourse with her until he ejaculated.
9. Upon arrangement of the defendant on 29^th September 2023, the defendant entered a plea of guilty on those three occasions which he had sexually abused his daughter.
10. It ought to be noted that the offence of Persistent Sexual abuse of a child in accordance to S.142 (2) carries a maximum sentence of life imprisonment.
11. The maximum sentence enacted by the law reflects the seriousness of the offence and to protect the interest, safety and security of young children, like the complainant.

Aggravating features.

12. The complainant was a young girl between 13 and 14 years at the time of offending. According to R v Ligiau and Dori^[1] extreme young age is a serious aggravating feature.
13. A girl between 13 and 14 years old as in the current case below the consenting age of 15 is considered as strong aggravating features.
    • (i) Age gap is a feature to be considered. The defendant is 40 years and his daughter is 14 years, making an age gap of 26 years.
    • (ii) The location of the offences. Two were done in the sanctity of the house, the matrimonial home of the family of the Defendant and one was at among some patch of trees in the bush.
    • (iii) The defendant took advantage of the vulnerability of the victim. In particular the incident where he pulled her into a patch of bush and had sexual intercourse with her.
    • (iv) Abuse of position of trust. The defendant is a father who has full responsibility and obligation to take care of his children. That trust was breached.
    • (v) Repetition of offending. There were three (3) instances of sexual abuse amalgamated under one offence. On those three (3) occasions the defendant had sexual intercourse with his daughter.
    • (vi) The defendant mentioned a weapon, a bush knife, to threaten the victim. Thereby had sexual intercourse with her.
    • (vii) Psychological and emotional effect on the victim. The offending had psychological and emotional effect on the victim. She felt shame inclusive of her family. Those aggravating features implicated and points to the fact that the offence committed is very serious.

Mitigating Features.

14. (i).Early guilty plea at the first available opportunity. In fact it serves Court and everyone time and resources.
    • (ii) The defendant is a first time offender. He has no previous criminal record. This shows he is of good character up until offending in the current case.
    • (iii) The defendant has some personal circumstances. One that he has nine (9) children to feed and educate. Secondly, he was educated to class 3 at Primary School. Thirdly he is unemployed and has no reliable source of income; he only sells white bean cocoa and betel nut.

Fourthly, four (4) of his children are at Primary School and they rely on him for care, finance and school fees.

Fifthly, his wife is not employed but rely on him for support. He is the only breadwinner.

15. The defendant felt remorse for what he had done to his own daughter. This has been shown by his early guilty plea. He assured the Court he would not repeat the same again. He realize he had breached the law and felt regret. He promise to live a good life.

Analysis.

16. The Defendant became to realize he had perverted the law and custom after the PI proceedings. At the PI proceedings record reveals he maintained his plea of not guilty. In this Court he change to guilty plea for the betterment of himself and putting less effect on the victim of having an ordeal giving evidence at trial, sparing and relieving her from any expenses, and sparing time wastage and resources.
17. However, in aligning or measuring his guilty pleas to his criminal actions on those three occasions which he sexually abused his own child, he was possessed by the most demoniac influence that utterly destroyed his human capacity, and allow lusts of his flesh to control his ego.
18. He even did not consider the victim was his own step child, even did not consider she was between 13 and 14 years of age and below the age of consent. He even did not realize he was the step-father and at the age of 40 at that time. He did not even consider that he had a wife who was still alive with nine (9) children. The gap age is 26.
19. What a manner of human, deceived and infiltrated by the devil, to commit sexual intercourse and abuse to his own step child.
20. His repetition of committing the crime of sexual abuse to his step child, affirms he was possessed by evil demons. He must have planned what he actually implemented. His successful on the first occasions drove him to succeed on two other occasions. On the first occasion he threatened the victim, that if she refused he would kill her with a knife.
21. His success was obtained due to his threat to kill. The threat used at the first occasion with a knife had impacted the victim with fear hence two other occasions. She became a vulnerable victim of threat at the mercy of the defendant, his step father. No doubt she must be psychologically and emotionally affected which brought shame on her and family. See- R v Bonuga^[2].
22. On two occasions the defendant had defiled the sanctity of his own home by sexually assaulted the victim at night in their sleeping room.
23. The general over view of the defendant’s actions render him on unreliable step father, no respect to his family, law, and custom. He had breached all good guiding principles in custom and law. He is somebody who cannot be trusted. He abused his position of trust. He should be a step father whom the victim relied on for good upbringing and security. He had defied it all.
24. What else can be said on behalf of the defendant? He is a first time offender. I would agree nevertheless even first offending is one of the worst of degree. That one offending show he is a good person until he committed the offences and that has question his moral behaviors and attitude.
25. He pleaded guilty at first opportunity. He said he felt sorry for what he had done and promised not to repeat the same again but to live and good life. With the assistance of the sentence to be imposed will perhaps deter his personal life.
26. He further stated he was a married man with nine (9) children and the only bread winner selling betel nut and wet cocoa beans. If the cocoa and betel nut trees still remain standing his wife and elder children, including the victim would just do as he did before. That will assist paid for School fees and support them.
27. Court will also consider time spent in custody. In this case 10 months. That is not a mitigating factor.
28. In R v Wilfred Ba’ai^[3] the Court of Appeal stated in paragraph 17, however, the court has said previously, the personal circumstances of an offender play little part in mitigation.
29. This is true, the defendant would have considered his personal circumstances before started venturing into creating a down fall and disrepute of character to his own family.

Sentencing principles:

30. The paramount principle governing the determination of a sentence is that the sentence be proportionate to the gravity of the Crime.
31. In the case of R V Radic^[4] the New Zealand Court of Appeal expressed the punitive aspect of punishment. It stated the main purpose of sentencing/punishment is to protect public, from commission by making it clear to the offender and to other persons who may have similar impulse, that if they yield to, they will meet with server punishment will prevent the commission by many.
32. The protection of public is an overriding purpose such as deference and rehabilitation. See R V Homes^[5].
33. In Tii V R^[6] the Court of Appeal stated in paragraph 21, “A sentences would be crafted to attain goals of punishment, deterrence and rehabilitation. There is general and personal deterrence. Generals deterrence is aimed at reflecting to the Community that they do not accept the defendants conduct”.
34. Personal deference is ensuring or discouraging the defendant from committing the same or similar offences in the future.

Starting Point

35. In Tii V Regina^[7], the Court of Appeal stated in paragraphs 21, 22 and 23 that a starting point should be considered of the facts of the offence, appropriate range of penalties for the offence. Then any aggravating circumstances should be identified.
36. The sentencing judge’s attention should then turn to the facts relating to the offender, his mitigating factors.
37. The Defendant was charged for persistent sexual abuse of a child, who to his knowledge was his first born daughter who was between 13 and 14 at that time of offending.
38. The incident happened on three separate occasions between 1^st June 2022 and 31^st August 2022.
39. I have noted in the case of Bade V R^[8], on paragraph 16, which stated, “It must be said that when there is appellate authority for sentencing, it is binding on the High Court and references to contrary High Court cases are of no relevance and does not assist the judges”.
40. It is with respect to that guiding principle that I will refer to Court of Appeal Authorities only.
41. To start off with is the case of Pana V Regina^[9] which the court stated...” the sole fact that the child is below the age of consent in itself bring the starting point to eight years whether the conviction is for rape or defilement.
42. I then refer to paragraph 24 of the Bade case which the Court of Appeal stated, importantly, expanded the definition of rape so that effectively any type of penetration, absent consent, is rape.
43. In the current case, the maximum punishment for persistent sexual abuse of a child is life imprisonment, and is parallel to the offence of rape.
44. In Bade case the Court of Appeal consider starting point for a contested rape should now be eight (8) years. Where there is a guilty plea it should be six (6) years.
45. In the case of R V Tony Sinatau^[10] the Court of Appeal set starting pint of 8 years for rape, that is count 1. The Court then made an up lift of fours due to combination of the very serious aggravating features. That gives a figure of 12 years.
46. The mitigating features is plea of guilty and a clear record. The Court allow 3 years for mitigation and impose a sentence of 9 years.
47. Having guided by the case authorities I set 8 years as a starting point, see R V Sinatau^[11] above.
48. I have considered the aggravating features as I outline in paragraphs 12 above and in the analysis paragraphs 16-24 above.
49. With that I uplift the figure of 5 years, to a total of 13 years.
50. Having considered the mitigating features outline in paragraphs 13-15 above, I allow deduction of 2 years for plea of guilty and no previous conviction, and impose a sentence of 11 years.

Orders:

1. Defendant is convicted on his own plea of guilty.
2. A sentence of 11 years is hereby imposed.
3. Time spend in custody be deducted (10 months).

The Court.
Rex Faukona.
DEPUTY CHIEF JUSTICE.

^[1] [1986] SBHC 15; SILR 214 (3 September 1986)
^[2] [2014] SBCA 22, SICOA-CRC 12 of 2014 (17 October 2014).
^[3] Criminal Appeal Case NO 7 of 2022 (Appeal from High Court case NO 631 of 2020).
^[4] [1954] NZLR 86.
^[5] [1995] 1 Cr App. R 98.
^[6] [2017] SBCA 6; SICOA-CRAC 14 of 2016 (5 May 2017)
^[7] Ibid 5.
^[8] [2023] SICOA CRAC 9817 of 2023 (4^th October 2023).
^[9] [2013] SBCA 19 at 17.
^[10] [2023] SICOA CRAC 9027 of 2023 (13^th October 2023).
^[11] Ibid (9)