IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC. No. 159 of 2011

REGINA

V

HOKA

Hearing Dates: 19 – 21 November 2012
Verdict Delivered: 22 November 2012
Sentence Delivered: 10 December 2012

Coram: Pallaras, J.
Crown: Ms. Taeburi
Defence: Mr. Aupei

SENTENCE

Pallaras J

1.	On 22 November 2012 you were convicted of five counts of attempted rape and five counts of indecent assault. All of these offences were committed over a two year period between 2007 and 2008. They were also committed against the same Complainant, Flistus Ella Liubatia, who was only 12 years of age in 2007. All of the offences were committed in the presence of another girl who was only 9 years old in 2007. 

2.	The crime of attempted rape is a very serious offence carrying a maximum penalty of 7 years imprisonment. The crime of indecent assault is also a serious offence carrying a maximum penalty of 5 years imprisonment. You have committed five counts of each of these felonies.

3.	There are several significant features of aggravation of your offending.

4.	You were in your early thirties at the time of your offending. Your victim was a young child of 12 years of age. It is well established that the very young age of the victim is regarded as a very serious aggravating feature.

5.	The reason for this is obvious. The law serves as a shield to protect every citizen in this nation, particularly those citizens who cannot protect themselves. Our young children must be protected from molesters like you who perversely treat young children as their personal playthings and sex objects. 

6.	It is very difficult to comprehend how any adult could conduct himself in so base a way with children as you have conducted yourself. It is equally difficult to comprehend how you could treat and regard children with such contempt, such unfeeling cruelty and with such self-centred conceit that you would so debase and degrade them for your own narcissistic pleasure. If your own conscience and sense of morality doesn't stop you from committing these abhorrent crimes then the law must step in and do it for you.

7.	The measure of your arrogance is shown in the way that you felt totally comfortable in committing these crimes not only against a very young child, but also in the presence of an even younger child. I repeat, it is hard to comprehend such cruelty.

8.	Your offending was not simply a momentary loss of control. This is not one bad decision that you made in a moment of weakness. It was a concerted course of action spread over two years which you invoked whenever you felt the need to do so. You had days, weeks and months to consider the consequences of what you were doing, to reflect upon what you were doing to two very young children and to stop your criminal behaviour. Yet you made the same separate and independent decision to abuse these children time after time and month after month. In short, your behaviour was detestable.

9.	A further feature of your offending is that you and the Complainant lived in the same village. You have been referred to as her "cousin brother". You knew her well and as a much older adult male you obviously considered the relationship to be one where you could tell the child what to do. There clearly was an element of trust in the relationship, a trust which you so comprehensively abused.

10.	You threatened the victim with a knife if she refused to do what you demanded and you also threatened to kill her with the knife if she disclosed to anyone what you were doing to her. Those are the actions of a coward and a bully who takes pleasure in proving what a big man he is by threatening and terrorising young children.

11.	You even tried either to assuage your conscience or, more likely, to ensure their silence by giving them small amounts of money after each offence. This conduct too is manipulative and controlling designed to prevent your exposure as a child molester.

12.	It is put in your favour that you are a young man still in your thirties, that you co-operated with the police and that you are previously of good character. It is further said that you have good prospects for rehabilitation.

13.	While I will give what weight is possible to those factors, it is well established that in relation to offences of this kind, matters personal to an accused may play less of a role in sentencing than might otherwise be the case.

14.	The classic principles of sentencing are often described as retribution, deterrence, prevention and rehabilitation. While giving full consideration to each of these elements, in my judgement the elements of both personal and general deterrence are paramount in this case. This case, sadly, is not unusual. Cases in which offenders, mainly adult men, use and abuse young children as their personal sex objects, to be bullied and threatened into submission on fear of death or injury, are disturbingly common.

15.	They occur in villages and towns alike to children of both sexes and all ages. Married men, single men, young men and old men are committing these crimes against women and children. The communities from whence those men come must sound the clarion call to them and others of like mind that enough is enough. The abuse and debasement of women and children must stop.

16.	This Court has a small but vital role to play in this process. It is to deliver fair and just penalties befitting the crime in a manner that will serve the long accepted need to impose sentences in appropriate circumstances that will act as both general and specific deterrents. The community has a right to expect that of its Courts and the Courts must respond appropriately.

17.	The crime of attempted rape carries a maximum penalty of 7 years imprisonment while the offence of indecent assault carries a maximum penalty of 5 years imprisonment. In the factual matrix of this case, I regard each attempted rape and each indecent assault as more serious than the one preceding it in that it is aggravated by the fact that the offence is repeated.

18.	After considering all of the mitigating and aggravating factors mentioned above as well as relevant sentencing principles, I have decided upon the following sentences.

Count 1 – Attempted Rape 3 ½ years imprisonment
Count 3 – Attempted Rape 4 years imprisonment
Count 5 – Attempted Rape 4 ½ years imprisonment
Count 7 – Attempted Rape 5 years imprisonment
Count 9 – Attempted Rape 5 years imprisonment
Count 11 – Indecent Assault 2 years imprisonment
Count 14 – Indecent Assault 2 ½ years imprisonment
Count 16 – Indecent Assault 3 years imprisonment
Count 18 – Indecent Assault 3 years imprisonment
Count 20 – Indecent Assault 3 years imprisonment

19.	Given that each attempted rape offence was immediately followed by the commission of the offence of indecent assault, there is good reason to impose, and I do so impose, concurrent sentences by pairing each sentence for indecent assault with the sentence imposed for the contemporaneous attempted rape.

20.	Pairing the sentence for attempted rape with the contemporaneous indecent assault results in the following – 

Count 1 – Attempted Rape 3 ½ years imprisonment together with
Count 11 – Indecent Assault 2 years imprisonment (concurrent with Count 1)
Resulting in a sentence of 3 ½ years imprisonment

Count 3 – Attempted Rape 4 years imprisonment together with
Count 14 – Indecent Assault 2 ½ years imprisonment (concurrent with Count 3)
Resulting in a sentence of 4 years imprisonment

Count 5 – Attempted Rape 4 ½ years imprisonment together with
Count 16 – Indecent Assault 3 years imprisonment (concurrent with Count 5)
Resulting in a sentence of 4 ½ years imprisonment
 
Count 7 – Attempted Rape 5 years imprisonment together with
Count 18 – Indecent Assault 3 years imprisonment (concurrent with Count 7)
Resulting in a sentence of 5 years imprisonment

Count 9 – Attempted Rape 5 years imprisonment together with
Count 20 – Indecent Assault 3 years imprisonment (concurrent with Count 9)
Resulting in a sentence of 5 years imprisonment

21.	However as the crimes of attempted rape were offences committed on different days separated by time over two years, I can see no good reason for ordering concurrent sentences in respect of the separate sentences imposed for the attempted rape offences. The sentences would in those circumstances, ordinarily be ordered to be served consecutively.
 
22.	This approach would result in a head sentence of 22 years (3.5 +4+4.5+5+5). I am conscious that this would be a crushing sentence if fully imposed and that in accordance with the totality principle, I ought to reduce it to avoid such an outcome. 

23.	The method by which this result can be achieved has been the subject of consideration in the High Court of Australia in the case of Mill v R in which the Court said:

"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."

24.	The authorities establish that the totality principle of sentencing requires a sentencing judge to ensure that the aggregation of the sentences imposed for each offence is reflective of a just and appropriate measure of the total criminality involved. 

25.	In Director of Public Prosecutions v Grabovac, the Court discussed the approach to adopt when sentencing for multiple offences so as to avoid the imposition of what would otherwise be a crushing sentence thus:

"In general, a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, … where practicable where applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a "crushing" sentence." 

26.	If the result of imposing appropriate sentences for a series of offences produces an outcome which is too severe, a more appropriate sentence can be constructed either by altering the orders for cumulation and concurrency, or by lowering the sentences for individual counts. In this regard I am guided by the preference expressed by the High Court of Australia in Mill and will adapt the orders made as to cumulation and concurrency. 

27.	I therefore order that – 

(A)	 the concurrent sentences imposed for Counts 1 & 11 (3 ½ years) and Counts 3 & 14 (4 years) be served concurrently, resulting in a sentence of 4 years, and

(B)	 the concurrent sentences imposed for Counts 5 &16 (4 ½ years) and Counts 7 &18 (5 years) and Counts 9 & 20 (5 years) be served concurrently, resulting in a sentence of 5 years and 

(C)	 the sentences imposed in respect of (A) and (B) above be served consecutively, resulting in a total head sentence of 9 years imprisonment.

28.	The sentence is to be reduced to take into account time spent in custody which is agreed by the parties to be days.

THE COURT