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R v Manaturei [2022] SBHC 119; HCSI-CRC 184 of 2021 (18 November 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 184 of 2021

REX

V

RUDGARD MANATUREI

Date of Hearing: 16 November 2022
Date of Decision: 18 November 2022

Ms A Mono for the Crown
Mr L Waroka for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. Rudgard Manaturei you have pleaded guilty to one count of having sexual intercourse with a child under the age of 15 years contrary to section 139(1)(a) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016 [“the Act”]. You now appear for sentence.

Facts

2. You are an Anglican priest. The victim is one of your parishioners. On 11 December 2020 you told your son to call the victim. She was playing behind the church. She was just 5 years old. Your son called her and as directed she went to your house. You told her to go inside a sleeping tent. She did so. You then removed her underpants. You stuffed the underpants into her mouth to stop her from being heard as she cried. You pushed your finger into her vagina causing her pain. You threatened to kill her if she told her parents. You allowed her to leave when your son came into the house. When she was medically examined the victim’s hymen was no longer present. You were arrested and have been in custody since 3 January 2021.

Personal Circumstances

3. You are aged 54. You are married with 3 children.
4. You were a church priest of the Anglican Church at the time of your offending. You have not previously appeared before the Courts.
5. Counsel has set out that you approached the victim’s father to seek reconciliation. I am told that he elected to leave the matter because it a shameful thing. I record that the complainant should feel no shame. You are the one responsible for abusing a child when you were in a position of trust in relation to that child.
6. You have been dealing with a medical issue which includes Hepatitis B for which you are on medication and for which you have been hospitalised. I am advised that you are now well on the road to recovery although you continue to suffer from the effects of the disease.
7. While personal matters are to be taken into account the Court of Appeal has confirmed what this Court said in R v Ligiau and Dori [1986] SBHC 15:
   • “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.”

Aggravating Factors

8. There are serious aggravating factors relied on by the prosecution. The first and most significant is the gross breach of trust. You are a priest and the victim was one of your parishioners. Section 136C (2)(i) of the Penal Code, as amended provides:
   • “(2) Without limiting subsection (1), a person is in a position of trust in relation to a child if the person is any of the following:
   • (a) ...
   • (b) ...
   • (c) ...
   • (d) ...
   • (e) ...
   • (f) ...
   • (g) ...
   • (h) ...
   • (i) a leader of the child’s religion or community;
   • (j)...
   • (k)...
   • (l)...
   • (m)...”
9. I agree that you were a person in a position of responsibility in respect of the victim and you abused that trust.
10. The second is the young age of your victim being just 5 years old.
11. The prosecution also point to the disparity in your ages as you were 54.
12. You used threats and force in your offending. You stuffed her underwear in her mouth and you threatened to kill her if she told her parents.
13. There is a degree of premeditation using your own son to call the victim to your house. Your house was a place where your victim should be able to feel safe. You abused her there.
1. The Crown also submits that I can find that there has been psychological harm to the victim. The Court of Appeal in Regina v Liva [2017] SBCA 20 confirmed what it had said in Regina v Bonuga [2014] SBCA 22:
   • “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.”

I do not know what the long term effects of your offending will be on a child of such tender years. There is no doubt that she is likely to suffer severe or lasting harm.

Mitigating factors

14. You have pleaded guilty to the offence. Although it could not be said to be an early guilty plea it has saved the child the trauma of reliving what you did to her. Your plea is a recognition that you have offended against her and to that extent is an indication of your remorse. The offer to reconcile with the family of the victim is also a reflection of remorse. I repeat it is you who has done a shameful thing not the victim of your offending.
15. You have not previously come to notice. Your counsel submits that you are a person of good character. Against that you have abused the trust placed in you. You clearly are not someone in whom your parishioners can place trust in respect of their children.

Principles of Sentencing

16. In imposing sentence, I must take into account the need to hold you accountable for the harm that you have done to your victim and to the community. You need to understand the harm you have caused. I must promote in you a sense of responsibility for and an acknowledgement of that harm. I need to denounce your conduct and deter you and others from such offending. I need to protect the community from you and others who may be minded to act as you have. I also need to provide for your reintegration into the community and for your rehabilitation.
17. I must bear in mind the gravity of your offending and the seriousness of this type of offending and the need for consistency in sentencing levels. To that end the sentence must provide both specific deterrence for you and general deterrence for others in the community.

Starting point

18. Ligiau and Dori is also the case that set the tariff for sexual offending cases. The Court of Appeal has confirmed that the starting point for the rape of an adult victim following trial, where the case has no aggravating factors would be five years’ imprisonment. In Pana v Regina [2013] SBCA 19 the Court said:
    • “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.”
19. In Pana the Court of Appeal considered an appeal against sentence following a guilty plea for one count of defilement (the equivalent of section 139(1) of the Act) and one count of indecent assault (the equivalent of section 139(2) of the Act). The High Court had imposed 11 and a half years’ imprisonment for the first count and 2 years’ imprisonment for the second count, with the sentences to be served concurrently. The victim of the offending was a three year old child who was the niece of the accused. The offending in the first count involved penile penetration of the genitalia. An aggravating factor was that the child contracted a sexually transmitted disease. The plea was entered on the day after the trial was due to commence. That is the same as in your case. The Court of Appeal indicated that the age of the victim warranted an increase from the 8 years starting point of a further 4 years and that the guilty plea entered on the second day of trial merited a reduction of six months’ imprisonment. The effect of the sentence was to have a final sentence of eleven and a half years’ imprisonment.
20. Both counsel have referred to a number of cases where the Court imposed sentence for the sexual abuse of a child. Each has factors the Court needs to keep in mind. Your counsel has accepted that Pana sets a starting point of eight years imprisonment. In accordance with Pana there needs to be an increase to reflect the aggravating factors, in particular the young age of the child, your threat to kill her and the breach of your position of responsibility.
21. I also must keep in mind what you have taken from her. She will need to live with the consequences of your offending.
22. I increase the starting point by 18 months to reflect the aggravating factors.

Guilty plea

23. The most significant matter in mitigation is your guilty plea entered the day after your trial was to commence. At paragraph [29] of Pana the Court of Appeal discussed the credit for a guilty plea. The Court said:
    • “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. We have set out above the judge’s description of the child’s distress at being brought to court and, whilst it may be correct that it was the sight of her distress which engendered the change of heart in the appellant, it was only at that stage that he showed any indication of wishing to spare the young girl. A deduction of two and a half years for that was over generous and our view is that it justified no more than six months.”
24. Although your plea was entered the day after your trial was due to start it was entered before the complainant gave evidence. That was different from the case in Pana. You will therefore receive a greater reduction than the Court of Appeal recommended for the Appellant in Pana.

Cases referred to by counsel

25. In R v Belo [2021] SBHC 17, the offender pleaded guilty to a charge under the same section as you face. The offending was on a 10 year old girl. The 71 year old offender had pulled the victim into his own house. The victim cried when the offender had sexual intercourse with her. He stopped when he heard her mother calling her. The Court imposed a sentence of 9 years imprisonment.
2. In R v Kaneta [2019] SBHC 52 the offender was sentenced for offending on a 7 year old child following a guilty plea. That case did not have the breach of trust which is present in your case. The Court imposed 6 years imprisonment.
26. In R v Siosi Orisi [2018] SBHC 37 the Court sentenced the offender following a guilty plea to 4 years imprisonment. The victim was aged 14.
27. In R v Konairamo [2019] HCSI CRC 183 of 2018, the offender was sentenced following a guilty plea to two counts under the same section. The victim was aged 9 years. The Court imposed 5 years imprisonment.
28. Your counsel has referred to the less serious cases of R v Sape [2020] SBHC 118 and R v Hogromana [2021] SBHC 6. Each were sentenced to 4 years imprisonment. The victims were aged 12 years and 11 years respectively. In Hogromana there was a breach of trust but there were not the threats to kill that are present in your case. In Sape the offender was aged 34 and there was not the breach of trust nor the threat to kill.
29. Your counsel also referred to Regina v Takesi [2020] SBHC 121. In that case there was a breach of trust. The offender was an uncle offending against a 14 year old niece. That charge is less serious than in your case as it had a lower maximum sentence available because of the age of the victim.

Conclusion

30. I increase the starting point to 9 years and 6 months imprisonment to take account of the serious aggravating factors, in particular the age of the victim, the threat to kill her and the violence of stuffing her underpants in her mouth while you abused her and the breach of trust that had been placed in you as a priest. I reduce the sentence by two years to reflect your stated remorse and guilty plea. For the remaining mitigating factors I allow a further one year reduction to reflect your previous good character and lack of previous offending. In your case I have concern because of the health issues you face so for your personal circumstances I allow a further 6 months reduction. That leaves a final sentence of 6 years imprisonment. That period will commence from the day you were taken into custody.

Order

1. The accused is convicted and sentenced to a term of imprisonment for 6 years. The sentence is to commence from the day he was taken into custody.
2. The name and any identification of the complainant are permanently suppressed.

By the Court
Hon. Justice Howard Lawry
Puisne Judge