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R v Kale [2022] SBHC 69; HCSI-CRC 680 of 2021 (17 August 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 680 of 2021

REGINA

V

SAM KALE

Date of Hearing: 16 August 2022
Date of Decision: 17 August 2022

Mr A Meioko for the Accused
Mr H Max for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. Sam Kale you have pleaded guilty to three counts of having sex with a girl under the age of 15 years contrary to section 139(1)(b) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016. You now appear for sentence.

Facts

2. On three occasions between 1 September 2021 and 3 October 2021 you arranged to meet the complainant at a particular place. You removed her clothing and had sexual intercourse with her. I am told she was a willing participant but she was just a child aged 13 years and you aware an adult aged 28 years.
3. In November 2021 after your offending came to light she turned 14. She was born in November 2007.

Aggravating Factors.

4. There is a disparity in your ages of 15 years. You were an adult more than twice her age.
5. The second aggravating factor is the repetition of the offending.

Mitigating Faction

6. I accept that you have pleaded guilty at the earnest opportunity. I accept that you have no previous convictions.
7. Your counsel has submitted that the victim was a willing participant. The Court of Appeal has made it clear that a child under the age of 15 cannot consent. She was only 13.
8. Your counsel has submitted that you are a very young offender. That is clearly not the case. You were an adult aged 28 at the time. The submission by your counsel that the age difference is minimal is also plainly not the case. As set out above the age disparity is an aggravating factor. As a male more than twice her age there is a major power imbalance that the Court must recognize.

Deterrence

9. This is one of those cases where there must be both specific and general deterrence. There is a need to defer you and others from sexual offending especially against children. You must understand the consequences of such criminal behavior.

Starting point

10. The Crown has correctly submitted that Court of Appeal decision of Pana v Regina [2013] SBCA 19 applies in your case. The Court 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. I also note that in Pana the Court said at paragraph [27]: “The offence of defilement is one of a number of offences designed to be part of a child protection regime. Any civilized society must protect its children from the predatory activity of some adults. Crimes against children must be regarded more seriously because of those considerations.”

At paragraph (18) the Court said: “The aim of guidelines is to give the sentencing judge guidance on the appropriate level of sentencing. They can do no more. They can never take away from the judge the determination of what is the proper and appropriate sentence for the particular case the court is considering.”

11. I bear in mind the submission that you and the victim were in love. That must be balanced against the fact that she was only 13 and you were a mature 28 year old.
12. Counsel have drawn the Courts attention to a number of cases including those where the offender was a teenager and the complainant was close to the age of consent. Neither of those situations are present in your case. The closest case to your circumstances placed before me is Regina v Chite [2021] SBHC 110. You were older than the offender in that case and the victim was older than your victim. The Court in Chite reviewed a number of cases where there was a submission that the complainant was a willing participant.
13. In Chite the Court took a starting point of 3 years and 9 months’ imprisonment. As your victim was only 13, I regard the offending in your case as more serious. I must also consider the guidance given in Pana.
14. In the circumstances of your case I take a starting point of four years and six months’ imprisonment for the first offence. Because the offending was repeated I increase the starting point to five years for the remaining counts. I then allow you a full one third reduction for your guilty plea and for remorse. That is a reduction of 20 months. For the remaining matters of mitigation I allow a further four months’ reduction.

Concurrent/consecutive

15. I find that all three counts are for offending against the same victim. I regard the offending as a single termination even though they were on different occasions. The sentences will therefore be concurrent. The final sentence is 3 years’ imprisonment.
16. Your counsel asks that the Court consider suspending some or all of the sentence. Section 44 of the Penal Code provides that in some circumstances some or all of a term of imprisonment can be suspended. That section makes it clear that a suspended sentence is only available where the term of imprisonment to be imposed is not more than two years. The court then has no power to suspend your sentence nor part of it.

Orders

1. On Court 1 the Accused is convicted and sentenced to a term of imprisonment of three years.
2. On court 2 the Accused is convicted and sentenced to a term of imprisonment of three years.
3. On Court 3 the Accused is convicted and sentenced to a term of imprisonment of three years.
4. The sentences on counts 1, 2 and 3 are to be served concurrently making a total sentence of three years’ imprisonment commencing today.

By the Court
Justice Lawry PJ