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R v Hardie [2022] SBHC 70; HCSI-CRC 501 of 2020 (23 August 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 501 of 2020

REGINA

V

ANTHONY HARDIE

Date of Hearing: 22 August 2022
Date of Decision: 23 August 2022

Mrs M Suifa’asia for the Crown
Mr B Harunari for the Defendant

SENTENCE

Introduction

1. Anthony Hardie, you have been found guilty of one count of committing an indecent act on a child contrary to section 139(2) (a) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. The victim is your granddaughter who was only 4 years old at the time. You now appear for sentence.
2. You were aged 65 at the time of your offending.

Facts

3. In mid-2020 you were living in Kakabona. You were supported by your daughter who is the mother of the complainant. On 29 June 2020, while the complainant was in your care you pinched her genitalia causing her pain. Evidence of physical trauma was noted by the doctor who examined her the following day. The offending came to light when the complainant’s mother had washed the victim’s bottom and when she commenced washing her genitalia the discomfort it caused the victim caused your daughter to ask the victim why it was sore.

Aggravating factors

4. There are a number of aggravating features. The first is the very young age of the victim. She was only four years old.
5. The second is the gross breach of trust. You are her grandfather entrusted with her care and you abused that trust to sexually assault the victim. You totally betrayed your daughter who supported you and who had left her daughter in your care.
6. The Crown also points to the obvious disparity in your ages. You being 65 at the time. The disparity reflects the total imbalance of power. You took advantage of that to abuse her.
7. Finally, you caused the victim injury which caused physical pain and discomfort. The injury was apparent to the doctor who examined her.

Mitigating factors

8. So far as the offending is concerned there is nothing in mitigation.
9. For mitigating factors personal to you, you have no previous convictions. I record however that in R v Ligiau and Dori [1986] SBHC 15 the Court said: “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.”
10. Your counsel also draws to my attention that you have health issues that have made your remand more difficult for you than it would be for many others.

Principles

11. 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. I need to promote in you a sense of responsibility for and an acknowledgement of that harm. I need to provide for the interests of your victim. I need to denounce your conduct and deter you and others from offending of this nature. I need to protect the community from you and others who may be minded to act as you have. I need to provide for your reintegration into the community and for your rehabilitation.
12. I must bear in mind the gravity of your offending and the seriousness of this type of offending. I also bear in mind the need for consistency in sentencing levels and the requirement that I impose the least restrictive outcome appropriate to the circumstances.

Starting point

13. Counsel have placed a number of authorities before me. In R v Pola [2022] the Court considered offending by a 25 year old uncle of a 5 year old victim. A starting point of 3 years was adopted. In R v Kio [2021] SBHC 158 the offender was charged with offending against a 10 year old victim and was sentenced to 2 years imprisonment after a guilty plea was entered. I have also considered the comments made by the Court of Appeal in the much more serious case of Pana v Regina [2013] SBCA 19.

Discussion

14. The facts in your case demonstrate a very serious level of offending against this section. As a grandfather looking after your granddaughter, you have caused her pain for your own sexual gratification. The maximum penalty for an offence against section 139(2) (a) is 7 years’ imprisonment. Because of the gross breach of trust and causing her injury through your offending and considering her tender age I take a starting point of 3 years and 6 months’ imprisonment. Such a starting point addresses the principles of sentencing referred to above and in particular address the need for deterrence both for you and others who may consider offending as you did.
15. From that starting point I allow a reduction to reflect that you had no opportunity to plead to the charge, as you faced a more serious charge at trial. I take into account your age and the poor health you have and make a total reduction of six months’ imprisonment for mitigating factors. That leaves a total sentence of 3 years’ imprisonment. I am told that you have been on remand in custody for almost two years. A prisoner sentenced to imprisonment for a term of three years would receive remission of one third. I therefore regard the sentence of imprisonment for three years as having been served.

Orders

1. The Accused is convicted and sentenced to a term of imprisonment for three years.
2. As the Accused has effectively served that term he is to be released at the rising of the Court.

By the Court
Justice Lawry PJ