HIGH COURT OF SOLOMON ISLANDS

Case name: 	R v Zengava 	
		
Citation:		
		
Date of decision: 	4 November 2020	
		
Parties: 	Regina v Jonathan Zengava 	
		
Date of hearing: 	29 October 2020	
		
Court file number(s): 	154 of 2019	
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 		
		
Judge(s): 	Bird; PJ	
		
On appeal from:		
		
Order:	1. The defendant is convicted on one count of incest contrary to section 163 (1) of the Penal Code (cap 26).
2. The defendant is convicted on two counts of incest contrary to section 163 (2) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
3. For count 3 the defendant is sentenced to 2 ½ years’ imprisonment. 6 months of the sentence is suspended.
4. Count 5 the defendant is sentenced to 3 years imprisonment.
5. Count 6 the defendant is sentenced to 3 years imprisonment.
6. Sentences on counts 5 and 6 to be served concurrently.
7. Sentences on count 3 to be served consecutive to counts 5 and 6.
8. The time spent in per-trial custody to be deducted from the total sentence.	
		
Representation: 	Rachel S Olutimayin for the Prosecution
Michael Holara for the Defendant 	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Penal Code, S. 136 [cap 26], S.160(a), S.141 (1) [cap 26], S. 163 (1), Penal Code (Amendment) (Sexual Offences) Act 2016,S.136(F) (1) (a) & (b), S.163 (2) (b)	
		
Cases cited:	Mulele v Director of Public Prosecution and Poini v Direct of Public Prosecution [1985-1986] SBCA 6, R v Ligiau & Dori and Regina v Phoboro [2013] SBHC 8, R v Ningalo [2013] SBHC 44, R v Atkin [1994] SBHC 47	

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 154 of 2019

REGINA 

V

JONATHAN ZENGAVA

Date of Hearing: 29 October 2020
Date of Sentence: 4 November 2020

Sitting in Gizo: High Court Circuit 

Rachel S Olutimayin for the Prosecution 
Michael Holara for the Defendant 
SENTENCE 
Bird PJ:
1. 	The defendant Mr. Jonathan Zengava was originally charged with three counts of rape contrary to section 136 of the Penal Code (cap 26) and three counts of rape contrary to section 136 F (1) (a) & (b) of the Penal Code (Amendment) (Sexual offences) Act 2016.
2. 	An amended information was filed on the 19th June 2020, in which the defendant was charged with two counts of indecent assault contrary to section 141 (1) of the Penal Code (cap 26), one count of incest by male contrary to section 163 (1) of the Penal Code (cap 26), two counts of incest contrary to section 163 (2) (b) of the Penal Code (Amendment) Sexual offences) Act 2016 and one count of unnatural offences contrary to section 160 (a) of the Penal Code (cap 26). The defendant had initially pleaded not guilty to all charges.
3. 	On the 27th October 2020 and upon instructions, Mr. Michael Holara of counsel, told court that the defendant will plea to some of the charges. The Director of Public Prosecution had by then withdrew counts 1, 2 and 4 under section 190 (2) (b) (1) of the Criminal Procedure Code. The defendant was thereby acquitted of those charges. Counts 3, 5 and 6 were proceeded with and the defendant was re-arraigned on those charges. He entered a guilty plea to all charges. The agreed facts and sentencing submissions were tendered and presented to court by both counsel on the 29th October 2020.
4. 	The facts of your case as agreed by both counsel are as follows. The complainant in your case is your biological daughter and the only daughter in the family. The three offendings were committed in your family home at Jamaica settlement, Tuzu village, South Choiseul, Choiseul Province. The offences were committed in 2015, 2017 and 2018 respectively.
5. 	The offence contained in count 3 of the information was committed in 2015. The defendant is hereby charged under the old legislation in the Penal Code (cap 26).
6. 	Count 5 and 6 were committed in 2017 and 2018 respectively and the defendant is charged under the Penal Code (Amendment) (Sexual Offences) Act 2016.
7. 	The complainant was born on the 4th November 1998 which made her 17 years in 2015, 19 years in 2017 and 20 years in 2018.
8. 	The first incident occurred on an unknown date between 1st January 2015 and 31st December 2015. The complainant was then a Form 1 student at Rarakisi Community High School. One afternoon, after school and at about 4:00pm whilst her mother had gone to their garden and her four brothers had gone to Tuzu village, the defendant called her to go inside the matrimonial bedroom. The defendant told the complainant to undress and he had sex with her.
9. 	The second incident occurred on an unknown date between 1st January and 31st December 2017. Both the defendant and the complainant were at their house. The defendant called the complainant into the matrimonial bedroom and had sex with her.
10. 	The third incident occurred on the 19th April 2018 at about 8:00am. The complainant’s mother was in the kitchen. Her four brothers had gone to Tuzu village. The defendant called the complainant into the matrimonial bedroom and he had sex with her.
11. 	The complainant’s mother was aware of what the defendant was doing to their daughter but failed to speak out or rebuke him.
12. 	In April 2018, the defendant ran away from home. The parents went and brought her back. The complainant reported the matter to other people and those people reported the matter to the police.
13. 	On the 23rd April 2018, police went to the defendant’s home and took the complainant. They recorded her statement.
14. 	On the 7th May 2018, the defendant was taken to Taro Police station by the police. He was arrested on the same day and placed in the cell.
15. 	On the 9th May 2018, the defendant participated in a record of interview with the police. He co-operated with the police and admitted the three offences on which he is charged.
16. 	I have noted from the information that the three offendings were committed over a period of three years.
17. 	I have heard and noted the respective sentencing submission from Ms Rachael Olutimayin, the Director of Public Prosecution and Mr Michael Holara and I am grateful for those well prepared submissions to assist me finalising this matter.
18. 	Ms Olutimayin appearing for the crown had submitted that there are a number of aggravating features in your offending. Mr Holara of counsel for the defendant on the other hand submitted that there is no aggravating features in the three offendings.
19. 	By the authority of Mulele v DPP and Poini v DPP. [1985- 1986] SILR 145, I can hereby hold that there are various aggravating features in this case.
20. 	In the above cases, the court of Appeal had stated that in sexual offences cases, four factors should be considered. They included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
21. 	In this case, there is a huge age disparity between you and the complainant. You were born in 1974. That would make you 41 years old in 2015, 43 years old in 2017 and 44 years old in 2018.
22. 	The complainant was 17 years old in 2015 and the age disparity between you during the first offending was 24 years. You were a matured adult but your behaviour was very selfish and immature.
23. 	The other aggravating feature is the abuse of position of trust. You are the complainant’s father. The complainant looks up to you as a role model. As a father, you are entrusted with her care and total wellbeing. You are required to treat her as a daughter and not as a sex object. You abused the trust that your daughter and the community at large had placed upon you.
24. 	The three offendings had occurred over a period of three years. You have consistently abused your daughter for your own sexual gratification to your daughter’s detriment over a long period of time.
25. 	I have also noted that on a certain occasion, your daughter had run away from home. You and your wife, followed her and took her back home.
26. 	Your daughter’s running away from home is a clear indication that she disliked what you were doing to her. In the absence of a psychological report. I am still entitled to say that your action to the complainant had caused her physical, psychological and emotional stress. In our culture, it is very shameful and an embarrassment to be sexually abused by one’s own father. The stigma attached to such circumstances is enormous.
27. 	On your behalf, I have noted that you are now 46 years old. You are married with five children. You do not have any formal employed but you are able to financially support your family with what you had.
28. 	You have pleaded guilty to the offendings at first opportunity. I give you credit for that. That guilty plea saves time and resources from conducting a trial. You have also spared your daughter further stress in having to recite what had occurred to her previously.
29. 	I have also heard your personal apology in court. You are remorseful. You have also come to terms with your offendings and have promised not to further offend in future.
30. 	You are a first offender. You have lived a crime free life for the most part of your life until these offendings. I have also noted that you have admitted to the offendings to police when you were interviewed on the 9th May 2018. I have noted that there was no threat, force and violence used.
31. 	You have been remanded in custody since the 7th May 2018 to date. You have spent a total of about 2 years and 6 months in pre-trial custody.
32. 	On the issue of delay, I would say that there was some delay in the prosecution of your case. I have noted from the file that you were committed to this court on the 1st August 2018. The initial information against you was filed by the Director of Public Prosecution on the 17th July 2019, more than 11 months after your committal. There had been a delay of more than 11 months in the prosecution of your case. I see no reason why it would take the Director more than 11 months just to file the information in your case.
33. 	Your lawyer had submitted that you could have committed the offendings because people were saying that the complainant was not your daughter. I cannot and will not accept that as a mitigating feature. My advice to you is this, you cannot control what people will say but you can control your responses, because it is within your power to do so.
34. 	I am also guided by the principle referred to in the cases of R v Ligiau & Dori and Regina v Phoboro [2013] SBHC 8, in which Ward CJ and Pallaras J were of the view that in cases of sexual assault, matters personal to the defendant are likely to have less impact on sentence.
35. 	I am grateful for the various case authorities cited by the Director and your lawyer to assist me in this sentence.
36. 	In the case of R v Ningalo [2013] SBHC 44 CRC 78 of 2008, the sentencing range in the cases discussed therein was an imprisonment term of between 2 years to 6 years. In any event Ningalo was sentence to 4 years imprisonment on each of the three count of incest and served concurrently.
37. 	I have also take cognisance of the various cases referred to by your lawyer. The sentencing tariffs are also similar. Of particular reference is the case of R v Atkin [1994] SBHC 47. In that case, there was repetition of the offence over a period of time and there was breach of trust.
38. 	After having taken into account all of the above factors, I am inclined to impose a sentence that would bring home that the courts do not tolerate or condone these types of offendings. They are becoming very prevalent in our country and the sentences imposed must show offenders and would-be offenders that severe penalties will be imposed.
39. 	I have to distinguish that count 3 of the charges against you was committed in 2015 and you were charged under the old legislation in the Penal Code. The maximum penalty is one of 7 years imprisonment.
40. 	Counts 5 and 6 were committed in 2017 and 2018 respectively and you were charged under the Penal Code (Amendment) (Sexual Offences) Act 2016. The maximum penalty had been increased to 10 years imprisonment.
41. 	Having distinguished the three respective charges against you, I am inclined to determine that whatever sentence I am going to impose would reflect that distinction.
42. 	Having considered all of the aggravating and mitigating features in your case together with the various case authorities. I hereby sentence you to 2 ½ years’ imprisonment on count 3, 3 years imprisonment on count 5 and 3 years imprisonment on count 6.
43. 	I further direct that the sentences in count 5 and 6 are to be served concurrently. The sentence in count 3 to be served consecutive to counts 5 and 6.
44. 	For the delay of more than 11 months in the prosecution of this case. I further direct that 6 months from the sentence in count 3 is hereby suspended.
Orders of the Court
1.	The defendant is convicted on one count of incest contrary to section 163 (1) of the Penal Code (cap 26).
2.	The defendant is convicted on two counts of incest contrary to section 163 (2) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
3.	For count 3 the defendant is sentenced to 2 ½ years’ imprisonment. 6 months of the sentence is suspended.
4.	Count 5 the defendant is sentenced to 3 years imprisonment.
5.	Count 6 the defendant is sentenced to 3 years imprisonment.
6.	Sentences on counts 5 and 6 to be served concurrently.
7.	Sentences on count 3 to be served consecutive to counts 5 and 6.
8.	The time spent in per-trial custody to be deducted from the total sentence.
THE COURT
Hon. Justice Maelyn Bird
Puisne Judge