Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

R v Daw [2023] SBHC 154; HCSI-CRC 220 of 2023 (21 August 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 220 of 2023

REX

V

DAW

Date of Hearing: 21 August 2023
Date of Ruling: 28 of August 2023

Tonowane N for the Crown
Aisa T for the Defence

SENTENCE

INTRODUCTION

1. DAW, on Monday 21 August 2023, this court convicted you on your own plea, for two counts of the offence of sexual intercourse with a child under 15 years, under section 139(1)(b) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The offender was arraigned on Tuesday 15 August 2023 during which he pleaded guilty to both counts.
3. The matter was adjourned to Monday 21 August 2023 for both counsels to finalise the summary of facts and to have it filed.
4. Both Counsels agreed to a set of facts (summary of facts). It was filed on 21 August 2023.
5. Each of the two counts in the Information charged that each incident occurred at Kokeqolo Community High School area, Munda, Western Province, on an unknown date between 1 October and 31 October 2022, that is, on different/separate dates but within the same month.
6. The summary of facts was read in court by the prosecutions and agreed to by the defence. When the offender was asked if he agreed with the summary of facts, he responded, ‘I agree.’
7. The summary of facts set out the background to the two incidents charged and how the offending occurred.
8. It involved one victim aged 13. She was born on 3 May 2009.
9. It is notable that the victim at the time of the offending was attending Rarumana Primary School. She was in Grade 6. She is from Rarumana Village, Parara Island, and Western Province. The school had its one-week school break in the month of October 2022 and so she went to Munda. The victim spent the school break with her cousin brother (offender’s son) at Kokeqolo Primary School area, Munda. It was during that time that the offender DAW had sexual intercourse with the victim.
10. The Court conducted your sentence hearing at 2pm on the same day of your conviction, Monday 21 August 2023. After that, the Court reserved its ruling until today.
11. This is my ruling on your sentence.
12. To protect the identity of the child, I will use the initials ‘MNJ.’
13. To avoid the victim being identified, I have also ordered to use the initials ‘DAW’ to refer to the offender.
14. I accept that this case given its nature might be given some wider publicity. I have given orders that if the case is reported in the media or through other means, any information that might identify the victims is suppressed.
15. I note from the facts presented that these are serious offences, especially when such crimes of violence are committed against children; and so in considering sentence I do not take that fact lightly.
16. I also note that these types of offending have been on a steady increase over the years. The Law Reform Commission in its previous report has highlighted the same. Other government institutions and civil society organisations have been vocal about the trend in recent years.
17. Parliament in its wisdom responded through the enactment of the Penal Code (Amendment) (Sexual Offences) Act 2016. This legislation provided the statutory framework governing sentencing for sexual offences.
18. The Court of Appeal, up to recently, continues to provide the jurisprudence governing sentencing (also expressed the role that the High Court plays in sentencing).
19. But as we see through the cases that have been and are being dealt with by court post amendment, the offending continues.
20. At this High Court Circuit, if I may add, about 97-98% on the cause list was sexual offences.
21. I remind myself though; that each case is to be dealt with on its own merits.

Summary of Agreed Facts

1. The defendant in this matter is (referred to as DAW), of Kwifalu Village, East Fataleka, Malaita Province. He was 45 years old at time the offending and a school teacher at Kokegolo Community High School.
2. The victim in this matter is (referred to as MNJ) of Rarumana Village, Parara Island, Western Province. She was 13 years old and a grade 6 student at Rarumana Primary School, at the time the offending. She born on 3^rd May 2009.
3. The defendant is the victim’s uncle. He married to the victim’s aunty.
4. The first incident occurred on an unknown date between 1^st October 2022 and 31^st October 2022 at Kokegolo Community High School area, Munda, New Georgia Island, Western Province. At the time, the Complainant with her cousin brother (defendant’s son) has spent their semester break with her cousin’s father, the defendant at Kokegolo area. During the night, the Complainant and another girl already fast asleep inside the room. The Defendant came and laid beside the Complainant, touched her breast and then insert his fingers into her trouser and he inserted his erected penis but could not fully entered the vagina. Therefore, he removed his penis off her vagina. Then he went out of the room.
5. On second incident occurred on another unknown date between 1^st October 2022 and 31^st October 2022. At that time, the Defendant came into room and laid beside the Complainant. He touched her breast, kissed her, removed her trouser and underwear and laid atop of her. The he inserted his penis into her vagina and had sexual intercourse with her.
6. After he ejaculated outside of her vagina, he went out of the room and return to his room.
7. After investigation has been carried out on another Defendant regarding an allegation of sexual intercourse with this same victim, the incident with this Defendant resurfaced and reported to the police.

SENTENCING

22. How should the court sentence the offender in the circumstances of this case?
23. Prosecuting Counsel Mr Tonowane in his submissions expressed his response in this way:
    • 9. “When considering the much appropriate sentence, this Honourable Court is respectfully asked to take the following matters into account: -

a) Maximum Sentence

10. The maximum penalty for an offence against section 139 (1) (b) is as follows:
“(1) A person commits an offence if the person has sexual intercourse with a child who is under 15 years of age.
Maximum penalty:
if the child is between 13 and 15 years of age – 15 years imprisonment.”
11. The maximum penalty term demonstrates the gravity of the offence and the motives of the legislators’ to deter and condemn those who front the Court for the offence of Rape or sexual intercourse with a child under 15 years. However, the Court have the discretion to impose lesser sentences, depending on the criminality of the defendant, the circumstances of the offending and the factors, which may aggravate the offending. In Regina-v-Andrew Tasia^[1] his Lordship Palmer CJ stated at paragraph 4:
“It is relevant to note that the maximum sentence of life imprisonment is a reflection of the seriousness with which this type of offence is regarded is regarded and reflective of the communities’ concerns and aversion to this type of crime and the need to protect children from this ongoing disgraceful activity.”
In the case of Regina v Kemakeza^[2] his Lordship CJ Palmer stated:
"The level of the seriousness of offences is reflected on a prima facie basis by what the law imposes as the maximum penalty. The more serious an offence the greater the maximum penalty imposed.”
12. Although the Court has the discretion to impose lesser sentences, it is submitted that the Court must not turn out of its duty to punish offenders for such serious crimes as rape or sexual intercourse with a child under 15 years. This is because imposing lenient sentences may to some degree deviate from the intention of the legislators’, and the need to discourage others from committing such gruesome crimes, or indulging in activities that would give rise to such offending.

24. The prosecutor identified the following which he submitted are aggravating factors (factors that aggravate the offending): age of the victim, age disparity, breach of trust, psychological and emotional effect on the victim, repeated commission of the offence. Mr Tonowane explained in further details, referring to authorities in support of each of the aggravating factors he identified.
    • (i) Age of the victim. The victim was a small girl of 13 years old. It is submitted that age of the victim alone is an aggravating factor. In the case of Pana v Regina^[3] the Court of Appeal said at paragraph [17]:
    • “We suggest that, in all but the most exceptional case, the sole fact that the child is below the age of consent should in itself bring the starting point to eight years whether the conviction is for rape or defilement. The actual age of the victim should still be taken into account as a possible aggravating factor over and above that. It would not amount to double accounting because it is the fact the victim is a child which brings the case into the eight year starting point and so the actual age may be considered as an additional factor. Its aggravating effect on the sentence will usually be greater the younger the child.”
    • In R v Ramaia^[4] his Lordship Palmer CJ states at paragraph 7:
    • “I note the presence of the aggravating feature in this case, that of the age of the victim at 14 years.”
    • (ii) The age disparity between the victim and defendant. The victim is 13 years old and the defendant is 45 years old at the time of the offending. There is a huge age difference of 30 years. In R v Ramaia^[5] his Lordship Palmer CJ states at paragraph 9:
    • “As an older person, there is an expectation of being responsible and accountable in protecting young girls from this type of offence.”
    • (iii) Breach of Trust. The defendant is the victim’s uncle. He married to the victim’s aunty. In Solomon Islands culture, a grandfather is respected and entrusted in a family or community as whole. Hence, the defendant in this present case is an uncle of the victim and the victim, as child of 13 years old, has entrusted him and when to his house to spend her semester break. However, instead for the defendant to provide care and security to the victim, he abused his position of trust as an uncle and acted otherwise when he committed the offence on the victim. It appears that the victim submits out of respect or fear due to the defendant’s position of authority, trust or responsibility as an uncle.
    • (iv) Psychological and Emotional effect on the victim. It is submitted that there is no doubt that the offence has psychologically and emotionally brought same on the victim (a child of 3 years old) and her family. In the case of Regina v Bonuga^[6] the Court of Appeal said at paragraph [23]:
    • “There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider judicial notice needs to be taken of the devastating effect on the victims of sexual offending, especially young victims as in this case. The psychological trauma cannot be ignored.”
    • In the recent case of Rex-v-Ramson Liufirara^[7]the Court of Appeal said at paragraph 23:
    • “We are quite satisfied in all cases of sexual offending of this sort, while there may not be observable physical damage, the level of psychological harm that creates ongoing issues for complainants is well-documented and can be taken judicial notice of as per Bonuga.”
    • (v) Repeated commission of the offence on the victim. The defendant having sexual intercourse with the victim more than once on 2 different occasions in on 1^st and 31^st October 2022 in his home. The offending does not limit to the first incident. It is submitted that there is need be an increase from the starting point to take into account the totally of the offending. In R v Ramaia^[8] his Lordship Palmer CJ states at paragraph 8:
    • “Another aggravating feature in this case is that of repetition in the offending. There were three instances of sexual abuse in the offending put together under this one offence. This offence targets the repeated nature of offending and while there may have been consent, it is still an abuse.”
25. Defence Counsel Ms Aisa listed three aggravating factors: breach of trust, repetition of offence and age disparity.
26. She submitted that court considers the guilty plea entered by the prisoner, his personal details, health conditions and being a first offender - had never had a brush with the law over the past 44 years.
    • “The Accused is a first time offender. He has been a law-abiding citizen for the past 44 years before he had committed the offence.
    • The Accused was 45 years old during the time of offending and he is a native of Kwaifalu village, East Fataleka, Malaita Province. He is married to a woman from Rarumana, Parara Island, and Western Province. They have two children. He is a teacher by profession. He stationed at Kokegolo Community High School. He taught mathematics and business studies for forms 2, 4 and 5. His wife is a nursing student at SINU currently doing year 3. His first child is in class six and his second child is in class two, both attended Rarumana Primary school. He is the sole breadwinner for his little family. He is a member of South Seas Evangelical Church. He joined the men’s band and youth at Kwailafu SSEC. He does not smoke or drink all throughout his life. He is a man of good character until he committed the offence.”
27. At the time of the offending, Ms Aisa submitted the prisoner attended SSEC at Kindu Village, Munda, Western Province
28. In relation to his medical conditions, Ms Aisa submitted,
    • “The Accused is having medical complications. He has stomach ulcer and chronic Iliac fossa pain. See the tendered medical report dated 16 August 2023.”
29. Defence Counsel Ms Aisa told Court,
    • “The Accused is very remorseful for his action although he had not reconcile with the complainant’s family. He and his family took initiative to reconcile with the Complainant’s family but the father of the Complainant refused to reconcile with them. Hence, no reconciliation was made.”
30. Defence Counsel further submitted that the fact that the prisoner pleaded guilty at the first available opportunity is indicative of true remorse.
    • “The Accused admits the offence and enters an early guilty plea at the first available opportunity. By pleading guilty, he owned up to the offending and willing to face the consequences of his action.”
31. Furthermore, in Pina v Regina, paragraph 22 effect of guilty plea in a sexual offence and any case involving a young child is that it saves the Complainant from the distress of having to relive the trauma from the witness box. Also, it saves Court’s time, resource, and public money to call witnesses to run a full trial.”
32. Defence Counsel further submitted that the fact that the prisoner pleaded guilty at the first available opportunity is indicative of true remorse.
    • “The Accused admits the offence and enters an early guilty plea at the first available opportunity. By pleading guilty, he owned up to the offending and willing to face the consequences of his action.
    • Furthermore, in Pina v Regina ^[9], paragraph 22 effect of guilty plea in a sexual offence and any case involving a young child is that it saves the Complainant from the distress of having to relive the trauma from the witness box. Also it saves Court’s time, resource, and public money to call witnesses to run a full trial.”
33. Defence Counsel Ms Aisa referred to the case of R v John Mark Tau and others where Palmer J (as he then was) stated,
    • “A plea of guilty demonstrates very clearly in my view a person who is not only remorseful, and is sorry for all his actions, but is courageous enough to face up to his own actions and the consequences that normally flow from it.”
34. In response, prosecutor Tonowane pointed out what he acknowledges as mitigating factors: guilty plea, first time offender and personal circumstances. Counsel outlined in some details his submissions for each of the mitigating factors and what he says the approach Court should take.
    • (i) “The defendant plead guilty to the offence. In the case of Roni v Regina^[10] the Court of Appeal stated at paragraphs 16 and 17:

“16. All the cases referred to above make particular mention that the effect a guilty plea should have on the sentencing decision. In each case emphasis has been put on the particular effect on the victim of having to give evidence at trial and the importance, where appropriate, of a reduction in the length of custodial sentence available from an early indication of a guilty plea. The starting points set out above assume a contested trial. In addition to sparing the victim the ordeal of giving evidence at the trial and possibly reliving the experience, a guilty plea also demonstrates that the offender appreciates how wrong his conduct was and regrets it.
17. It is principally for these two reasons that the sentencing judge should consider an appropriate discount to the applicable sentence arrived at following the guidelines. Previous discussions as to the available discount for a guilty plea can be found in Qoloni v Regina [2005] SBHC 73; HCSI-CRC 076 of 2005 (21 June 2005), Gerea v Regina [2005] SBHC 34; HCSI-CRAC 243 of 2004 (4 February 2005) and Talifai v Regina [2011] SBHC 16; HCSI-CRC 85 of 2010 (30 March 2011). It is worth noting that the reference to a maximum discount of 25% referred to from Australian authorities refers only to the utilitarian value of a guilty plea, whereas the English authorities on the same point, particularly in dealing with sexual offences, stress the value of a guilty plea to the victim. A maximum discount of one third may well be considered appropriate in some circumstances.”
In the case of Pana v Regina^[11] the Court of Appeal stated at paragraph [29]:
“In many cases where sexual offences are involved, a plea of guilty can result in a very substantial reduction, sometimes as high as a third, of the total penalty. In the present case, the plea of guilty was only entered after the trial commenced. It did, as we have said, spare the complainant from the ordeal of giving evidence and therefore deserves some recognition. However, it only came after the trial had started and the witnesses, including the complainant, had been required to attend.”
In the case of Roni v Regina^[12] the Court of Appeal stated:
“While the principal basis on which a plea of guilty can be prayed in aid by way of mitigation as demonstrating in some cases true remorse on the part of the offender, the extent to which it is taken into account is a matter for the court to determine and dependent on the facts of each case. For instance, if the accused had indicated that he would be entering a guilty plea at the committal proceedings, or well before commencement of the trial. There are other factors too which a court has to take into account, such as the interests of society and striking a balance when considering how much discount to consider. In some instances it may be difficult to see how a defence can be run successfully on a not guilty plea. In such situations he cannot expect much by way of a discount.”
In the case of Rex v Wilfred Ba’ai^[13] the Court of Appeal stated at paragraph 17:
“The respondent is also entitled to an allowance for his guilty plea but, given the number of times he appeared before the Court, it cannot possibly be said he was contrite and pleaded guilty at the earliest possible stage.”

The Crown submits that the defendant in this present case must be given a maximum discount of 25% for his early guilty plea.

(ii) The defendant is a first-time offender. Crown acknowledge the defendant in this present case is a first-time offender, however, it is submitted that it has little bearing as a mitigation factor for sexual offence cases such as this present case. In R v Ligiau and Dori^[14]His Lordship, Ward C.J. said:
“I treat you... as first offenders and allow for the personal circumstances outlined by your counsel but those, as I have said, have little bearing on sentence in a case of this nature.”

• (iii) The defendant’s personal circumstances. It is submitted that matters personal to the defendant has less effect as mitigating factoring sentencing for sexual offence cases like the present case. In R v Ligiau and Dori^[15]His Lordship, Ward C.J. pointed out that:-

“The problem in sentencing for such an offence is that, when the court is faced with a contrite offender, too often mitigating factors are allowed to push consideration of the victim and the offence itself into the background. In sexual offences as a whole, and rape and attempted rape in particular, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes.”
In R v Taurikeni-Sentence^[16] Justice Foukona stated at paragraph 29 as follows:
“On the outset, Ligiau and Dori (Supre) case attributed that such personal features must have less effect on the sentence. If the accused is concerned about his family the best he can do is placed them as first priority in life, acknowledging the fact that his wife has no formal employment and two children to support. He may now regret for what he had done, but that has come too late. He had set his priorities wrong. What he did bring shame and despair to his own family. Perhaps he would now learn his mistake after this Court.”
In the recent Court of Appeal case of Rex-v- Wilfred Ba’ai^[17] the Court of Appeal stated at paragraph 17:
“However, as this Court has said previously, the personal circumstances of an offender play little part in mitigation in offending of this sort. (e.g., R v Ligiau & Dori).”

• (iv) There may be other mitigation factors which defence may submit such as good character. However, Crown submits that the facts the defendant committed the same offences after the first one, does not reflect or speak volume of the defendant as a person of good character. Hence, the court may disregard this factor in the light of the seriousness of this offence. In Millberry v R^[18], the court stated that; “- the defendant's good character, although it should not be ignored, does not justify a substantial reduction of what would otherwise be the appropriate sentence.”

35. Prosecuting Counsel Mr Tonowane submitted that when one considers the circumstances of the present case, the aggravating factors outweighed the mitigating factors.

“It is submitted that although the Court is required to consider the mitigating factors, it must not outweigh the seriousness of the defendant’s offending in this case. In other words, it is submitted that the aggravating factors outweigh the mitigating factors, when considering the circumstances of this present case.”

36. Ms Aisa in her submissions referred the Court to a number of cases highlighting the approach that this Court should take on sentence.

“It is respectfully submitted that several case authorities were provided to assist the court when handing down its sentence towards the defendant. Some of them maybe varies depending on their significant circumstances.”

37. I note that the cases referred to by Counsel Aisa preceded the 2023 Court of Appeal judgement in R v Lifuirara where the Court was concerned with sentencing in sexual offences.

Regina v Wate [2022] SBHC 55; HCSI-CRC 705 of 2021 (23 August 2022)

The facts revealed that on the 10^th July 2021, the complainant was sitting at the veranda of their house with her aunt, grandmother and father. The defendant told the complainant to wash her clothes so she went into the room to get washing detergent. Defendant followed the complainant into the room and locked the door behind him. He told the complainant to remove her clothes and because she was afraid of him, she did. She then lay down on the bed and defendant instructed her to part her legs. He removed the lavalava and lay down on top of the complainant. Defendant pushed his penis inside her vagina and had sexual intercourse with her.
On second incident, when victim slept at the Veranda defendant wake her up and forced her to follow him into the room. They went inside the room and the defendant locked the door. The defendant lifted the complainant’s dress, pulled her trousers down, and then undressed himself. The defendant laid the complainant down and penetrated her vagina with his penis. The defendant was 61 years old and the victim was 12 years old. Victim is the daughter of the defendant’s nephew. The court imposed 3 years imprisonment for count 1 and 4 years imprisonment for count 2. Court order the sentence on count 2 to be serve concurrent to count 1.

38. Ms Aisa pointed out that in the present case, ‘it is analogous to the cited case on the facts that both case has breach of trust, repetition of offence.’ The only distinguishable fact according to Ms Aisa is that the present case has an age disparity one of 32 years and the cited case one of 53 years.
    • R v Fafoe [2021] SBHC 90; HCSI-CRC 397 of 2020 (22 September 2021)
    • The complainant is the stepdaughter of the Defendant. On the first occasion between 1^st May to 31^st May 2017, the complainant was 14 years and 11 months when the defendant had sexual intercourse with her in the garden. On the second occasion, first week in October 2019, the complainant was 17 years old; the defendant had sexual intercourse with her again, when the complainant’s mother was out on fishing. On the third occasion between1st November to 31st November 2019, in the early hour of the morning, the complainant awoke from her sleep and saw the accused on top of her. He then pushed his penis into her vagina and had sex with her. On last occasion, was between 16 and 30 December 2019 in their house, the accused had sexual intercourse with the complainant by inserting his penis into the complainant’s vagina. The Court sentence the defendant as follows
    • Count 1: 5 years imprisonment
    • Count 2: 5 years imprisonment
    • Count 3: 5 years imprisonment
    • Count 4: 5 years imprisonment
    • Count 1 and Count 2 to be serve consecutively. Count 3 and Count 4 was suspended.
39. Counsel submitted that the present case is distinguishable on the facts; that the present case has only two counts as opposed to the cited case. On the contrary has analogous facts of breach of trust and age disparity.
    • R v Sape [2020] SBHC 118; HCSI-CRC 539 of 2019 (27 November 2020)
    • 28. On the first occasion, the defendant asked the victim to follow him to his house at night. The victim did so. When they reached the defendant’s house, he told the victim to remove her clothes. The victim did as instructed. The victim laid on the mattress and the defendant pushed his erected penis into her vagina.
    • 29. On the second occasion, the defendant met the victim and asked her to follow him to his house hence; the victim again follow him to his house. There the defendant pushed his erected penis into the victim’s vagina until he ejaculated. The victim is 12 years old and the defendant is 34 years old. There is a breach of trust.
    • The court imposed 4 years imprisonment for count 1 and 4 years imprisonment for count 2. The court order that sentence to be served concurrently.
40. Counsel submitted that the present case ‘is analogous to the cited case that there was breach of trust and both occurred on two occasion, however our case has significant age disparity as opposed to the cited case.’
41. Defence Counsel also submitted on the sentencing range referring to Mulele v DPP and Poini v DPP; and Pana v R which applied Billam. Billam sets out the guidelines on sentencing for rape.
42. In the concluding part of her submissions, whilst acknowledging that each case is to be decided on its own merits, Ms Aisa urged the court to consider what she submitted as the strong mitigating factors that are present in this case.
    • “It is acknowledge that the charges faced by the accused are serious and carries higher maximum sentences. However, not every case is the same and each case must be decided on its own merit. Maximum sentences can only be reserve to cases of extreme nature by which the Court may see fit to impose such sentences. The Court ought to exercise its balancing exercise in reaching a fair and just sentence in this case. Obviously deterrent factors must be weighed against mitigating factors. Defence submits that this is one case there are strong mitigating factors that are present in this case. Therefore, court should consider when handing down it’s end sentence.”
43. Prosecuting Counsel Mr Tonowane submitted that there has been no substantial delay in this case.
    • “For this present case, the offending occurred between 1^st and 31^st October 2022. The charged against the defendant was filed on 17^th February 2022 at Gizo Magistrates’ Court. The matter was committed to the High Court on 14^th April 2023, and the information was filed on 16^th May 2023.”

CONSIDERATIONS

44. I have taken the time to consider the submissions by both counsels.
45. I have taken the time to consider sentence in light of the authorities referred to by counsels relative to principles of sentencing, starting points, together with aggravating and mitigating factors.
46. I note the mitigating factors and matters personal to you, as advanced on your behalf by Ms Aisa.
47. Ms Aisa submitted that court considers the guilty plea entered by the offender, his personal details, health conditions and being a first-time offender - had never had a brush with the law over the past 44 years. Counsel highlighted that in the following manner:
    • “The Accused is a first time offender. He has been a law-abiding citizen for the past 44 years before he had committed the offence.
    • The Accused was 45 years old during the time of offending and he is a native of Kwaifalu village, East Fataleka, Malaita Province. He is married to a woman from Rarumana, Parara Island, and Western Province. They have two children. He is a teacher by profession. He stationed at Kokegolo Community High School. He taught mathematics and business studies for forms 2, 4 and 5. His wife is a nursing student at SINU currently doing year 3.. His first child is in class six and his second child is in class two, both attended Rarumana Primary school. He is the sole breadwinner for his little family. He is a member of South Seas Evangelical Church. He joined the men’s band and youth at Kwailafu SSEC. He does not smoke or drink all throughout his life. He is a man of good character until he committed the offence.”
48. At the time of the offending, Ms Aisa submitted that the offender attended SSEC at Kindu Village, Munda, Western Province.
49. Ms Aisa submitted,
    • “The Accused is having medical complications. He has stomach ulcer and chronic Iliac fossa pain. See the tendered medical report dated 16 August 2023.”
50. I have read the medical report by Matrina Penevolomo, Registered Nurse Sergeant (233) of Gizo Correctional Centre Clinic. I note its contents, as follows:
    • “He was admitted at the Centre as a remand on the month of February 2023.
    • According to his medical assessment and observation, he is having gastritis (stomach ulcer) which usually causes him pain on the stomach and unable to cope with the food provided in the kitchen. He is also having chronic right: iliac fossa pain on his abdomen radiated to the chest, painful when palpated.
    • All his vital observations are stable. Blood pressure: 120/60 mmHg, pulse: 73bpm, temperature: o/s and oxygen: 98%.”
51. Your actions caused the victim to be traumatized when she was at your house for school break; what you did caused a long-lasting psychological harm on the victim.
52. Your actions warrant an immediate custodial sentence. I do not have any other better alternative sentence that fits the circumstances of this case.
53. The prosecutions suggested a starting point of 8 years and after taking into account matters of aggravation and mitigation further suggested that court considers imposing a sentence of 6 ½ to 10 years imprisonment.
54. Defence Counsel on the other hand, suggested a sentence that is fair and just, taking into account circumstances of the offending and balancing the aggravating and mitigating factors in light of the principle of deterrence.
55. The maximum penalty for this offence is 15 years imprisonment.
56. For the offending in the circumstances of this case, and for the reasons given in the sentencing remarks, I gave myself sometime to consider the starting point suggested by Counsel for the prosecutions and the general submission on point by counsel for the Defence.
57. Stand up DAW. You are from Kwifalu Village, East Fataleka, Malaita Province. You were 45 years old at the time of the offending. You are not an ordinary villager; you are a school teacher and at the time you were teaching at Kokegolo Community High School, in Munda, Western province.
58. The victim (referred to as MNJ) is from Rarumana Village, Parara Island, Western Province. She was at Grade 6 at Rarumana Primary School, at the time of the offending. She was born on 3^rd May 2009. She was 13 years old at the time.
59. You are the victim’s uncle. You are married to the victim’s aunty.
60. I note that being from another province, you were able to teach at a school in Western Province either through marriage to be closer to your wife’s home or just by applying for employment opportunity.
61. Your wife, the aunty of the victim is from Rarumana Village.
62. Kokeqolo Primary School is in Munda, but on a separate island from where Rarumana village is situated. It is nevertheless, within Roviana Lavata or within the greater Roviana.
63. I am surprised and shocked that you being a guest in another province, you failed to adhere to the customs and practices of that other locality in that other province (Roviana, Western Province).
64. I am sure, as an educated professional, you would have quickly or over a period of time learned it yourself or your wife would have taught you well about the customs and practices of Roviana people.
65. It is more about good neighbourliness and being a Christian yourself, attending SSEC Kindu Village, I am sure you were well versed with being a father-like figure at your house when your wife was away. As such, you would have cultivated a healthy mind and not get engulfed in immorality.
66. In that order, you could be able to resist temptations by controlling what you see and the message that the brain signals pass through the nervous system along the spinal cord into your person. Self-control is a fruit of the Holy Spirit. It is also a virtue to keep in life.
67. I find that the first incident occurred when the victim with her cousin brother (offender’s son) spent their semester break at your house, Kokeqolo Primary school. This was between 1^st October and 31^st October 2022. Your wife was at the time.
68. During the night, the victim and another girl were already fast asleep inside the room. You went into their room, and laid beside the victim. You touched her breast and then inserted your fingers into her trouser and you inserted your erected penis but could not fully penetrated the vagina. you removed your penis from her vagina. Then you went out of the room.
69. The second incident occurred on another unknown date within the same period, that is, between 1^st October 2022 and 31^st October 2022. At that time, you went into room and laid beside the victim. You touched her breast, kissed her, removed her trouser and underwear and laid atop of her. Then you inserted your penis into her vagina and had sexual intercourse with her.
70. After you ejaculated outside of her vagina, you went out of the girl’s room and returned to your own room.
71. I find from the facts that you took advantage of the opportunity when the victim was spending her school break at your house, and your wife was away. I find that you got attracted to the girl and lusted for her. This is an aggravating feature.
72. A person of your level of education and work should be able to control the excitatory signals that originated in the brain as a result of sight or thought, i.e. seeing the victim. You chose not to. This is an aggravating feature.
73. Given the circumstances of this case, I will impose on you as a starting point of 8 years imprisonment. I find that the offence you have committed is very serious.
74. I find that the aggravating factors outweigh the mitigating factors. Your actions, in my opinion demonstrate that you have no regard for the sanctity of your marriage, for your children, the welfare and future of the victim and for the law. I will add an additional 3 years to your sentence making it a total of 11 years.
75. I find the mitigating factors submitted on your behalf by Counsel Ms Aisa convincing; I also consider the guilty plea entered. In all I deduct 3 years from the total sentence. That brings me to 8 years.
76. I impose a sentence of 8 years imprisonment in Count 1- and 8-years imprisonment in Count 2.
77. I consider the totality principle which was described in Thomas, Principles of Sentencing, and have been referred to in this jurisdiction in numerous cases including the cases referred to here^[19], as follows:
    • "The effect of the totality principle is to require a sentence who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated in various forms: 'When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behavior and ask itself what is the appropriate sentence for all the offences'".
78. The court in Bade v The Queen stated:
    • “When considering sentence for a number of offences, the general rule must be that separate and consecutive sentences should be passed for the separate offences. However, there are two modifications, namely –
    • (a) where a number of offences arises out of the same single transaction and cause harm to the same person there may be grounds for concurrent sentences; and
    • (b) Where the aggregate of the sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case.” [Emphasis added.]
79. The Court of Appeal in the appeal case of R v Benson [2022] SBCA 22; SICOA-CRAC15 of 2022 (4 November 2022) highlighted the importance of imposing an appropriate sentence when confronted with the question of whether to impose a consecutive or a concurrent sentence; referring to an earlier case of Angitalo v Regina^[20]
    • “... the crucial question will be whether, looking at the criminality of the offender as a whole, the overall sentence that is imposed is not inappropriately heavy or lenient.”
80. These are very serious crimes committed against a very young child. I have outlined in this ruling the basis for identifying the appropriate sentence in this case. In view of my consideration of the totality principle, the sentences imposed are ordered to be served consecutively.
81. I order as follows:

ORDERS OF THE COURT

1. Length of sentence imposed: count 1: - 8 years, Court 2: – 8 years
2. Count 1 is to serve consecutive to count 2
3. Pre-sentence period in custody to be deducted: 7 months
4. Time to be served in custody:

THE COURT
Hon. Justice Ronald Bei Talasasa Jr:
PUISNE JUDGE

^[1]HCSI-CRC 68 of 2022. This is a case where the sentence was delivered after the ruling (judgment) in Ba’ai’s case.
^[2] HCSI-CRC 467 of 2007
^[3] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
^[4] [2021] SBHC 96; HCSI-CRC 97 of 2019 (24 July 2021)
^[5] [2021] SBHC 96; HCSI-CRC 97 of 2019 (24 July 2021)
^[6] [2014] SBCA 22; SICOA-CRAC 12 of 2014 (17 October 2014)
^[7]Criminal Appeal Case No. 30 of 2022 (On Appeal from High Court Criminal Case No. 94 of 2021)
^[8] [2021] SBHC 96; HCSI-CRC 97 of 2019 (24 July 2021)
^[9]SICOA- CRAC NO.13 of 2013
^[10] [2008] SBCA 8; CA-CRAC 23 of 2007 (18 July 2008)
^[11] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
^[12] [2008] SBCA 8; CA-CRAC 23 of 2007 (18 July 2008)
^[13]Criminal Appeal Case No. 7 of 2022 (on Appeal from High Court Criminal Case No. 631 of 2020)
^[14] [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986)
^[15]Above n. 11.
^[16] [2012] SBHC 31; HCSI-CRC 151 of 2011 (29 March 2012)
^[17]Above n. 10
^[18] [2002] EWCA Crim 2891 ((09 December 2002)) at para 29.

[19] Bu'uga v Regina [2011] SBHC 163; HCSI-CRAC 396 of 2011 (9 December 2011); Limana v Reginam [2015] SBCA 25; SICOA-CRAC 2 of 2014 (9 October 2015)

^[20] Angitalo v Regina [2005] SBCA 5; CA-CRAC 024 of 2004 (4 August 2005)