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R v NR [2023] SBHC 159; HCSI-CRC 335 of 2023 (25 August 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No.

REX

V

NR

Date of Hearing: 16 August 2023
Date of ruling: 25 August 2023

Kelesi, AE and Tonowane for the prosecutions
Aisa T for the Defence

SENTENCE

Talasasa PJ:
INTRODUCTION

1. Prisoner (referred to as NR), on Wednesday 16 August 2023, this court convicted you on your own plea, for two counts of the offence of sexual intercourse with a child under 15 years, under section 139(1)(b) of the Penal Code (Amendment) (Sexual Offences) Act 2016; three counts of indecent act under section 139(2)(b) of the Penal Code (Amendment) (Sexual Offences) Act 2016; and one count of indecent act under section 139(2)(a) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. Each of the six counts in the Information charged that each incident occurred in Rarumana, Parara Island in Western Province, on an unknown date between 1 October and 31 October 2022, that is, on different/separate dates but within the same month.
3. The summary of facts was read in court by the prosecutions and agreed to by the defence. When the prisoner was asked if he agreed with the summary of facts, he responded, ‘I agree.’
4. The summary of facts set out the background to the incidents charged and the modus operandi of the offender.
5. It involved three separate victims with ages ranging from 11 to 13 years.
6. The Court conducted your sentence hearing at 2pm on the same day of your conviction, Wednesday 16 August 2023. After that, the Court reserved its ruling until today.
7. This is my ruling on your sentence.
8. To protect the identity of the child, I will use the initials ‘NMJ,’ in respect of the victim in counts 1 and 2; ‘AR’ in respect of the victim in counts 3, 4 and 5; and ‘AO’ in respect of the victim in count 6. To avoid the victim being identified, I have also ordered to use the initials ‘NR’ to refer to the accused.
9. I accept that this case given its nature might be given some wider publicity. I have given orders that if the case is reported in the media or through other means, any information that might identify the victims is suppressed.
10. I note from the facts presented that these are serious offences, especially when such crimes of violence are committed against children; and so in considering sentence I do not take that fact lightly.
11. I also note that these types of offending have been on a steady increase over the years. The Law Reform Commission in its previous report has highlighted the same. Other government institutions and civil society organisations have been vocal about the trend in recent years.
12. Parliament in its wisdom responded through the enactment of the Penal Code (Amendment) (Sexual Offences) Act 2016. This legislation provided the statutory framework governing sentencing for sexual offences.
13. The Court of Appeal, up to recently, continues to provide the jurisprudence governing sentencing (also expressed the role that the High Court plays in sentencing).
14. But as we see through the cases that have been and are being dealt with by court post amendment, the offending continues.
15. At this High Court Circuit, if I may add, about 97-98% on the cause list were sexual offences.
16. I remind myself though; each case is to be dealt with on its own merits.
17. Both Counsels for the prosecutions and Defence filed the summary of facts. This set out below:

SUMMARY OF AGREED FACTS
Facts on Counts 1 and 2.

1. The defendant (referred to as NR) from Meamoge Village, Rarumana Village, Parara Island, Western province. He was 33 years old at the time of the offending.
2. The complainant (referred to as NMJ) of Bubuko village, Rarumana, Parara Island, Western Province. She was born on May 3 and was 13 years old at the time of the offending.
3. On an unknown date between October 1^st and October 31^st, 2022, the complainant met the Defendant on the road at Bubuko Village, and the Defendant asked to torch her breast. But the complainant said that there are people out on the reef. The defendant walked towards her, put his hands into her shirt, and touched her breast. He then reached down into her trousers, inserted his two fingers into her vagina, and removed his hands. Then he told the complainant to return to her home.
4. On the second occasion, on an unknown date between October 1 and October 31, 2022, in the afternoon at Bubuko village, Rarumana, Parara Island, Western Province, the complainant went to the seaside. She was alone at the seaside, but when she reached a location that was hidden from her house; someone pulled her left hand from behind. She turned and was the defendant. The defendant then pulled her left hand into the bush and say,” you na secret gele fren blo mi. “At that time, the defendant put his hand into the complainant’s shirt and touched her breast. He then told her to lay down, and she lay on the ground, face up. He then removed her clothes, licked her vagina, and pushed his finger into her vagina.
5. Thereafter, he removed his trousers, inserted his erected penis into the vagina, and had sex with her until her mother called her name, so he pulled out his penis from her vagina, wore his trousers, and ran away.

Facts on counts 3, 4 and 5

6. The defendant (referred to as NR), is from Meamoge Village, Rarumana, Parara Island, Western Province. He was 33 years old at the time of the offending.
7. The complainant (referred to as AR) of Meamoge Village, Rarumana, Parara Island, Western Province. She was born on August 14, 2009, and was 13 years old at the time of the offending. The defendant was her cousin’s brother.
8. On an unknown date October 1 and October 31, 2022 at Meamoge Village, the Complainant went to a residential area of the defendant. There, the complainant and others started to tell stories. The defendant raised his hands, indicating that he wanted to touch the complainant breast, But the Complainant said that people were there. The Defendant walked to the Complainant and said they had been gone, and he touch the complainant left breast with her clothes on.
9. On the second occasion, on an unknown date between October 1 and October 31, 2022, the Complainant went to the same area for play, but there were no children there. The Defendant called her asked her to touch her breast. The Defendant put his hands into her shirt touched her nipples, then moved his fingers inside her skirt and rubbed his hands around her vagina. After he did that to the complainant, she returned home.
10. On the third occasion, on an unknown date between October 1 and October 31, 2022, the complainant went to the Defendant’s Place and sat with the defendant’s wife in their kitchen. When his wife went to have here bath, the Defendant ask the complainant to touch her breast. He then touched her left breast with clothes on the pressed her breast, and then he left.

Facts on count 6.

11. The defendant (referred to as NR), is from Meamoge Village, Rarumana, Parara Island, Western Province. He was 33 years old at the time of the offending.
12. The third complainant (referred to as AO) of Meamoge Village, Rarumana, Parara Island, Western Province. She was born on May 15, 2011, and was 11 years, 5 month, and 15 days old. The defendant was her cousin’s brother.
13. On an unknown date between October 1 and 31, 2022, the complainant went up to the defendant’s area to look for children so that they could play. She arrives at the defendant’s area, and the children are already there. At that time, the defendant and his wife were in their kitchen. After they played, she was very thirsty and went to Defendant’s wife went to their house, and the Defendant said he wanted to touch her breast. The Complainant heard and ran away. She felt embarrassed when the defendant said he wanted touch her breast because he was the first person to say those words to her.
14. The matter was then reported to the police, and the Defendant got arrested and remanded on December 22, 2022, at Gizo Malakerava Correctional Facilities.

DETERMINATION OF SENTENCE

18. How should the court sentence the offender in this case? How is the court guided when determining sentence?
19. In his submission, Prosecuting Counsel, Mr Kelesi, AE reminded the Court that the maximum penalty under Section 139 (1) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016 is 15 years imprisonment.
20. For indecent assault, Mr Kelesi further submitted that under section 139 (2) (a) or 139 (2) (b), of the same legislation, the maximum penalty is 7 years imprisonment.
21. Mr Kelesi also pointed out that under section 24(2) of the Penal Code, the Court may impose any shorter term of imprisonment. Section 24(2) states:
    • “24. ......
    • (2) A person liable to imprisonment for life or any other period may be sentenced for any shorter term.”
22. In identifying the factors that should be considered, both Mr Kelesi and Ms Aisa referred to the Court of Appeal judgment of Mulele v Director of Public Prosecutions and Poini v DPP [1985-1986] SILR 145.
23. Both Counsels submitted that Mulele v DPP and Poini v DPP sets out a sentencing policy for future guidance.
24. Mr Kelesi identified and discussed in some details the following as aggravating features:
    1. The age disparity of the victim and the accused. The victims were only 13 and 11 years old at the time of the offending. All these victims were child of a tender age. On the other hand, the accused at the time of the offending was 32 years old at the time of the offending. The accused is a mature person older than the victims with age difference of 21 and 19 respectively. In Pana v Regina [2013] SBCA 19, the court of appeal stated that: “There is no doubt that the very young age of the complainant is a serious aggravating features in this case, which, in itself, should increase the sentence substantially over the starting point. That factor also makes the remaining aggravating features more serious than they would have been had the child been much older and we would accept the judge’s assessment that they collectively merit four additional years.”
    2. In relation to the character of the girl herself, we submit that the victims at the time of the offending were only 13 years old and 11 years. These are very young girls who are not in the position give consent and understand these types of offending.
    3. Vulnerability of the victims. There is very good reason why the penal code was amended in 2016. The courts in this country have repeatedly stated that those who commit these types of offences should expect an immediate custodial sentence. While there have been more serious cases of these type of offending, the sad thing is that this seems to be prevalent in this country. Children or girls at this tender age must be protected at all cost. This court therefore has that ultimate responsibility to protect them, and bear in mind the revulsion of the community and need to protect young girls in our society. The court must ensure that there is sufficient general and specific deterrence in the community by the type of sentences that are imposed.
    4. Another aggravating feature is the physical and physiological harm and injury caused a form of invasive violence of a young girl who could not defend and protect themselves from the advances by the accused to satisfy his desire. The actions of the accused would obviously cause untold suffering and pain that the victims will have to endure for some time to overcome this unwanted invasion of their body and personality at such a vulnerable age.
    5. Number of victims. It is important that this court must consider that there are three victims that the accused committed the offence on them.
    6. Repeated offending. It must also stress here that this accused has repeated the offences on these three victims at different times and places.
25. Counsel for the prisoner, Ms Aisa, T agreed with the prosecutions on the maximum penalty for the offences for which the prisoner had been convicted.
26. In her mitigation Ms Aisa strongly urged the Court to take into account the guilty plea entered by the prisoner at the first available opportunity which demonstrated to court that the prisoner was truly sorry for his deeds and is willing to face the consequences of his actions.
    • “The Accused admits the offence and enters an early guilty plea at the first available opportunity. By pleading guilty, he owned up to the offending and willing to face the consequences of his action.
    • Furthermore, in Pina v Regina, paragraph 22 effect of guilty plea in a sexual offence and any case involving a young child is that it saves the Complainant from the distress of having to relive the trauma from the witness box. Also, Court’s time, resource, and public money to call witnesses to run a full trial.
    • In R v John Mark Tau and others Palmer J (as he then was) stated,
    • “A plea of guilty demonstrates very clearly in my view a person who is not only remorseful, and is sorry for all his actions, but is courageous enough to face up to his own actions and the consequences that normally flow from it.”
    • The Accused is a first-time offender. He has been a law-abiding citizen for the past 32 years before he had committed the offence. He cooperated with the police and voluntarily surrendered to police custody.
    • The Accused is very remorseful for his action although he had not reconciled with the victim’s family however, his parents took the initiative and reconciled with both victim’s family.
    • The Accused was remanded at Gizo Correctional Centre on 22 December 2022 until today. It is now 7 months and 24 days in custody.”
27. Ms Aisa also pointed out the personal details of the prisoner.
    • “The Accused full name is NR. He is from Meamoghe village, Rarumana, Parara Island, Western Province. He was 33 years of age at time of offending. Now he is 34 years old and single.”
28. Ms Aisa accepted that there are aggravating factors in the offending and listed them as follows:
    • “The defence acknowledged that the following aggravating factors are present in this case.
      1. The victims were under the age of 15 years
      2. It is a repetition act done on the victims
      3. Age disparity
      4. Breach of trust.”

Sentencing Tariff

29. Mr Kelesi submitted the type of sentence to be determined in like offences by referring to decided cases in this jurisdiction.
30. The Prosecutions urged this court to consider passing sentence that reflects the principle of deterrence. Mr Kelesi urged this court to note consider the following:
    1. The Court will pass sentence on every case based on their own merits,

Circumstances, the aggravating factors and the mitigating factors of the offending.

2. In Pana v Regina [2013] SBCA 19, the accused pleaded guilty at the High Court for one count of indecent assault contrary to section 141 (1) and one count of defilement contrary to section 142 (1) of the Penal Code. He was sentenced for two years to indecent assault and eleven years and half years for defilement. He appealed to the Court of Appeal on the ground that the sentence is excessive; the sentencing judge erred in principle in setting the starting point for defilement at ten years. That the overall sentence of eleven years and a half is manifestly excessive. The court of appeal dismissed the appeal and confirmed that the imprisonment for defilement and two years concurrent for indecent assault confirmed. It appears from this case that the appropriate starting point is 8 years. The maximum sentence for the indecent assault under section 142 was 5 years compared to the current one of 7 years.
3. In respect to the charge under 139, the recent court of appeal case of Regina v Baia [2023] SBCA 9; SICOA-CRAC 7 of 2022 (28 April 2023) sets out some guideline. The victim was 12 years old and the accused was 68 years old. The accused pleaded guilty to the charge. There was age disparity considered in this case. The court noted that matters personal to the accused play little part in mitigation.
4. The court noted in Baia above that for matters that are at the lower scale of seriousness, an appropriate starting point to be three years’ imprisonment where the case is not contested. For the significant aggravating feature of the disparity of age, it is appropriate to increase that starting point to four years’ imprisonment. We therefore submitted that for the two sexual intercourse counts, a starting point of 4four (4) years should be considered in this case.
5. As for the indecent assault counts, we submitted that consideration should be made to the case of Pana above. The court should consider an appropriate starting point as noted in the case of Tii v Regina [2017] SBCA 6; SICOA-CRAC 14 of2016 (5 May 2017) and come up with an appropriate sentence to be imposed.
6. The cases referred to above set the guideline for sentencing. The circumstances of the case must be considered differently. Any penalty imposed must considered general deterrence. The sentence imposed must sent a clear and directed to all people that having sexual intercourse with a child or committing indecent act on them is wrong and the law will not tolerate these kinds of offences.
31. Whilst acknowledging the maximum penalty provided by law for the offence of sexual intercourse with a child under 15 years under section 139(1) (b), is one of life imprisonment, Counsel for the prisoner urged the court to consider the following cases:
    1. R v Bui [2021] SBHC 32; HCSI-CRC 562 of 2020 (25 February 2021)

Complainant Angela Hopa was 13 years old and was attending grade 5 at Poitete Primary school at the time of the offending. The Defendant at that time was 25 years old. On July 7, 2020, between 1700hrs and 1900hrs, at Poitete Station, Kolombangara Island the Defendant was drunk. He went to the complainant house and asked her for complainant’s cousin sister Rose. Complainant told him that Rose had already left to her home. Later the Defendant with Complainant then left the house and went to a garden. When they reached the garden, the Defendant and Complainant undress themselves and they had sexual intercourse in the garden.

After they had sex in the garden both walked back to the station and complainant followed the defendant to his house. They stayed at the Defendant’s house and had sexual intercourse again. In the next morning, the complainant left the defendant’s house and went back to her house. Court imposed 3 years imprisonment for count 1 and 3 years imprisonment for count 2. Count 2 suspended for good behavior for 2 years.

2. R v Dika [2022] SBHC 7; HCSI-CRC 9 of 2022 (8 April 2022)

The defendant and the complainant had a consensual sexual intercourse for six occasions. They were engaged in a boy or girlfriend relationship. The victim was 13 years and defendant was 21 years. The complainant here is a willing participant because she was the defendant’s girlfriend. The Court sentence the defendant of 22 months to be served concurrently and 6 months to be suspended for a period of 12 months.

3. R v Fafoe [2021] SBHC 90; HCSI-CRC 397 of 2020 (22 September 2021)

The complainant is the stepdaughter of the Defendant. On the first occasion between 1st May to 31st May 2017, the complainant was 14 year and 11 months and the Defendant was 45 years when the first incident occurred. The defendant went to the garden there he pulled her had sexual intercourse with her in the garden. On the second occasion, first week in October 2019, the complainant was 17 years old, the defendant had sexual intercourse with her again, when the complainant’s mother was out on fishing. On the third occasion between1st November to 31st November 2019, in the early hour of the morning, the complainant awoke from her sleep and saw the accused on top of her. He then pushed his penis into her vagina and had sex with her. And on last occasion, was between 16 and 30 December 2019 in their house, the accused had sexual intercourse with the complainant by inserting his penis into the complainant’s vagina. The Court sentence the defendant as follows

Count 1: 5 years imprisonment

Count 2: 5 years imprisonment

Count 3: 5 years imprisonment

Count 4: 5 years imprisonment

Count 1 and Count 2 to be serve consecutively, count 3 and Count 4 is suspended.

32. With regard to sentencing for the offence of indecent act under section 139(2)(a) of the Penal Code (Amendment) (Sexual offences) Act 2016, Ms Aisa urged the court to consider the following cases:
    1. R v Hardie[2022] SBHC 70; HCSI-CRC 50 OF 2020 (23 August 2022)

The defendant was charged with one count of Indecent Act contrary to 139(2) (a) of penal code (cap 26) as amended by Penal Code (amendment) (sexual offences) Act 2016. The defendant was 65 and the victim was 4 years at the time of the offending. The defendant related to the victim as her grandfather. Whilst the Complainant was under the care of the Defendant, he pinched her genitalia that caused her pain. This came into light when the Complainant’s mother washed her bottom and the Complainant was discomforted when her mother washed her genitalia when asked why it is sore that is when she recounted the incident. The Court imposed a starting point of 3 ½ half years and after further deductions. The Court imposed a 3 years’ imprisonment

2. R v Kio [2021] SBHC 158,HCSI –CRC 535 OF 2020 (15 Oct 2021)

The Defendant was charged with one of indecent act contrary to section 139(2)(a) of the Penal Code, as amended by Penal Code (Amendment) (Sexual Offences) Act 2016 and one count of incest contrary to section 163(1)(a) and 2(b) of the Penal Code, as amended by Penal Code (Amendment) (Sexual Offences) Act 2016. The Defendant was the Complainant’s grandfather. The Defendant was 69 years and the Complainant was 10 years old at the time of the offending. The Defendant went into the room where the complainant slept alone, on first incident he lifted up her skirt and touched her vagina. On the second incident, he lifted up her skirt and licked her vagina, the Complainant screamed and cried that is when the grandmother came at rescue and later report the matter to Police. The Court make a starting point of 4 years and after further reduction. The Court imposed a 2 years’ imprisonment.

33. In her submissions, Counsel Aisa pointed out that in respect of the two counts of sexual intercourse with victim NMJ, the present case can be distinguished from the cases referred to, R v Bui, and R v Dika.
34. Ms Aisa submitted that the defendant in this case, has no relationship with the complainant, and there is a huge age disparity one of 20 years as opposed to above mentioned case.
35. Also, Ms Aisa submitted, in the present case there are 6 counts and 3 victims as opposed to R v Bui, it involved 2 counts and one victim. With regard to R v Dika, it involved 6 counts and only one victim.
36. Defence Counsel also submitted that the case of R v Fafoe, can be distinguished from the facts of the present case. In the present case, said Ms Aisa, there is no breach of trust on the victim NMJ. However, the present case involved more counts than in the case of R v Fafoe and involved three victims as opposed to the mentioned case.
37. Defence Counsel submitted that counts 3 to 5 for indecent act on the victim (AR), similarly are serious as in the case of R v Hardie. The only difference is the section our case is contrary to section 139(2) (c) as opposed to R v Hardie and R v Kio. However, both are serious in the sense, that our present case, there is a breach of trust and it is a repetitive offence on three occasion. The R v Hardie and R v Kio, both has breach of trust, age disparity however; it does not have repetitive offence.
38. Defence further submits that count 6 for indecent act on victim (AO) is one on lesser offending that those two mentioned case R v Handie and R v Kio. In our present case, it’s only word that uttered as opposed to the two cited cases.

SENTENCING PRINCIPLES

39. Counsel Aisa submitted with reference to the oft quoted Billam case that in R v Billam [1986]1 WLR 349, Lord Lane CJ set three starting points; five, eight and fifteen years. Although the age of the rape victim is always a factor, we consider that, when the victim is a child below the age of consent, that should always bring the starting point up to eight years.
40. Counsel Aisa submitted that in R v Ligiau and Dori [1985] SILR 214, the Court stated that, In considering the appropriate sentence for this offence, I adopt the views of Lord Lane CJ in R. v. Billam [1986] 1 WLR 349.In that case, he suggests, as an indication of what current practice ought to be; “For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years. At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime upon a number of different women or girls. He represents a more than ordinary danger and a sentence of 15 years or more may be appropriate.
41. Counsel went further to submit that in Regina v Pana [2013] the court stated “In my judgement this is precisely the sort of case as mentioned in Billam, where the circumstances of the case warrant a departure from the starting point. The circumstances I refer to here are the extremely young age of the complainant (as opposed to the age difference between the complainant and the accused), the betrayal of trust by the accused in his position as uncle to the complainant, the physical harm done to the complainant by the accused and the emotional impact that this experience has had on the victim. These additional and very serious factors add substantially to the appropriate sentence for these offences and I consider that an additional four years imprisonment would be appropriate.”
42. The Defence submits that in relation to count 1 and Count 2, it lacks the aggravating features of breach of trust as opposed to count 3-6.
43. The Defence submits the count 3-6 are on lesser scale of offending as opposed to those mentioned case of R v Hardie and R v Kio, that age disparity in the present case is lesser as opposed to the above cases, says Counsel.
44. Counsel Aisa in her submissions acknowledges that the charges faced by the accused are serious and carries higher maximum sentences. However, Counsels says, not every case is the same and each case must be decided on its own merit. Maximum sentences should only be reserved for cases of extreme nature by which the Court may see fit to impose such sentences.
45. The Court ought to exercise its balancing exercise in reaching a fair and just sentence in this case. Obviously deterrent factors must be weighed against mitigating factors, says Counsel.
46. Defence submitted that there are strong mitigating factors that are present in this case and that should be considered by court.

CONSIDERATIONS

47. The prosecutions and Defence have well-articulated the law and the approach to sentencing that court should be mindful of and apply when considering sentence.
48. I note the aggravating factors identified by the prosecutions and the response by the defence as well as the mitigating factors highlighted by the defence.
49. I am grateful for counsels' submissions. I have given much thought to their submissions on sentence, considered them thoroughly and will exercise my discretion accordingly.
50. I found the following aggravating factors:
    1. The vulnerable age of the victims (all under the age of 15 years) (In R v Ramaia^[1] his Lordship Palmer CJ states at paragraph 7:
    • “I note the presence of the aggravating feature in this case, that of the age of the victim at 14 years.”
    2. Psychological harm and trauma caused to victims (very young age and being subjected to such acts of violence)
    100. Number of victims involved – 3
    4. Repeated offending – on two of the victims (counts 1 – 5)
    5. Age disparity – 20 to 22 years (In applying R v Ramaia: “As an older person, there is an expectation of being responsible and accountable in protecting young girls from this type of offence.”
    6. Breach of trust
51. Whilst I am obliged to apply only the law as submitted by counsels, and that I must do, it is my view that parliament should review the legislation (Penal Code (Amendment) (Sexual Offences) and increase the penalty prescribed under section 139(1) (b) to higher than 15 years or life imprisonment and the penalty under section 139(2) (a) to higher than 7 years or 30 years.
52. .What is the difference between having sexual intercourse with a child under 13 years of age which carries a maximum penalty of life imprisonment and having sexual intercourse with a child aged between 13 and 15 years which carries a maximum penalty of 7 years?
53. Having sexual intercourse with a child, generally, is a very serious offence. Such acts of violence (against a child) should be penalised severely. It should be reflected in the penalty prescribed by law.
54. In any case, the law, as it stands, prescribes a maximum penalty of 15 years imprisonment for sexual intercourse with a child under section 139(1)(b) and a maximum penalty of 7 years for indecent act under section 139(2)(a). I am bound by the law and by that law I shall sentence the offender.
55. I found that when you met the victim on the road, you asked to touch her breast. The victim, referred to as ‘NMJ,’ aged 13 years, then told you that there were people on the reef. I accept the response from the victim to mean that even at that young age, she knew what you wanted to do was wrong and was trying to fend you off.
56. Despite that, you proceeded towards the victim, put your hands into her shirt and touched her breasts; you then reached down into her trousers and inserted your fingers into her vagina, after which you told her to return home.
57. On the second incident I found that the same victim was alone on the seaside walking along; you waited until she reached a secluded spot on the road and you pulled her from behind and accosted her into the bush. You then told her that ‘you na secret gele fren blo mi.’ You touched her breast and you told to lay down, she did facing up. You removed her clothes, licked her vagina and pushed your finger into her vagina. Thereafter you removed your own trousers and inserted your penis into her vagina, you had sex with her. You only stopped when her mother called out for her. You got up, wore your trousers and ran away.
58. In respect of the other incidents – counts 3, 4 and 5: this involved another victim, ‘AR,’ aged 13 years.
59. In respect of the incident – count 6: this involved a third victim, ‘AO,’ aged 11 years.
60. In sentencing you, I apply the principles highlighted in Tii v Regina^[2] the Court of Appeal stated at paragraph 21:
    • “A sentence should be crafted to attain the goals of punishment, deterrence and rehabilitation.”
    • Deterrence (General and Specific deterrence)
    • General deterrence is required to reflect that the community does not accept the defendant’s conduct and to deter others members of the community from committing similar offences.
    • Personal deterrence is significant. The defendant must be discouraged from committing the same or similar offences in the future. Any sentence imposed should act as a deterrent to the defendant. The defendant should know that if he acts in the same or a similar way in the future, he will be dealt with accordingly.
61. Defence Counsel strongly urged the Court to consider the factors that she identified should mitigate against sentence. Ms Aisa urged court to consider the guilty plea taken which she described was at the earliest possible opportunity. I accept that the prisoner had admitted the indecent acts on the victim ‘AR’ to police way back at the time of the interview. This is relevant as Ms Aisa raised this as a strong mitigating factor.
62. On the starting points for sentence, both counsels referred me to previously decided cases on specific points as well as on general references:
    1. Counsel for the prosecutions submitted that in respect of counts 1 and 2, the starting point should be 4 years (applying Baia)
    2. Counsel Ms Aisa for the Defence pointed out the starting points in her submissions through a comparative analysis of cases that have been decided.
63. The Court has been referred to a number of these cases by both Counsels, for which I am grateful. I am minded to consider the positions taken by the Court of Appeal on point as this court is bound by that. I do so accordingly.
64. In the circumstances of each offending as particularised in each of the counts, I order the following:
    1. For Counts 1 and 2, I place the starting points at 7 years. In consideration of the aggravating factors I give an uplift of 4 years to 11 years imprisonment. Considering the mitigating factors, I give an allowance of 3 years which reduces the term to 8 years imprisonment.
    2. For Counts 3, 4 and 5, I place the starting points at 3 years. In consideration of the aggravating factors I give an uplift of 2 years to 5 years imprisonment. Considering the mitigating factors, I give an allowance of 1 year and 6 months which reduces the term to 3 years and 6 months imprisonment.
    3. For Counts 6, I place the starting point at 12 months; with consideration of aggravating factors an uplift to 1 year and 6 months. This is reduced by considerations for mitigating factors, making the sentence to impose to 1 year and 2 months imprisonment.

Consecutive sentence or Concurrent sentences

65. Prosecuting Counsel Mr Kelesi submitted that the Court should consider applying the approach in R v Benson SICOA - CRAC 15 of 2022.
    1. Mr Kelesi submitted that this court must not just consider whether each sentence is appropriate for each offence but look also at the total to ensure it is not out of proportion to the overall circumstances. Where it does appear to be too great, the court should reduce the total term of imprisonment by making some or all the sentences concurrent and not by reducing the individual sentences below an appropriate level for the particular offence for, by so doing, the impression given on the subsequent record of conviction is of a series of relatively minor offences”.21.A year later, his Lordship Ward CJ considered the principle again in Bade v The Queen and stated:
    • “When considering sentence for a number of offences, the general rule must be that separate and consecutive sentences should be passed for the separate offences. However, there are two modifications, namely –
      • (a) where a number of offences arises out of the same single transaction and cause harm to the same person there may be grounds for concurrent sentences; and
      • (b) Where the aggregate of the sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case.” [Emphasis added.]
    2. In the court of appeal case of R v Benson [2022] SBCA 22; SICOA-CRAC15 of 2022 (4 November 2022), the accused involved in a motor vehicle accident which claimed 5 lives and other injuries to other victims as well. He was charge with five counts of manslaughter.
    3. The trial judge imposed a starting point of 7 years imprisonment. For aggravating features, she increase the sentence by 3 years. For the mitigating features pleaded on his behalf and especially his early guilty plea, previous good character and other personal circumstances, the sentence was reduce by 18 months. For youthfulness, the sentence was further reduce by 2 years. Total sentence serve was 6 ½ years imprisonment on each of the charges of manslaughter. As the offences in counts 1 to 5 were done in a single transaction, the sentence was directed to be served concurrently.
    4. Aggrieved by the sentence, the prosecutions appeal the sentence. The court of appeal noted that the starting point in this case of 7 years was manifestly inadequate and the learned judge erred on this point. The court was satisfied that a starting point noting the maximum penalty to be imposed, the features and aggravation of the offence, should be 21 years imprisonment. Taking the discount of 25% together with other mitigating factors, the court of appeal were satisfied that the sentence of 21 years should be reduced by 6 years to 15 years.
    5. It was submitted by Mr Kelesi that this court should consider the approach taken in the above case of Benson to reflect the three separate victims.
66. I have considered the approach suggested and the authorities cited or referred to.
67. I agree with prosecuting counsel’s submissions on the law. The judgement of Bade v The Queen sets the foundation in this jurisdiction on the totality principle when considering sentence for a number of offences.
    • The court in Bade v The Queen stated:
    • “When considering sentence for a number of offences, the general rule must be that separate and consecutive sentences should be passed for the separate offences. However, there are two modifications, namely –
      • (c) where a number of offences arises out of the same single transaction and cause harm to the same person there may be grounds for concurrent sentences; and
      • (d) Where the aggregate of the sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case.” [Emphasis added.]
68. The Court of Appeal in the appeal case of R v Benson [2022] SBCA 22; SICOA-CRAC15 of 2022 (4 November 2022) highlighted the importance of imposing an appropriate sentence when confronted with the question of whether to impose a consecutive or a concurrent sentence; referring to an earlier case of Angitalo v Regina^[3]
    • “... the crucial question will be whether, looking at the criminality of the offender as a whole, the overall sentence that is imposed is not inappropriately heavy or lenient.”
69. I outline them as follows: -
    • (i) The various offences were committed at separate times over a period of time on three separate victims.
    • (ii) All victims were less than 15 years of age. They were of very tender age. The specific ages of each victim have been outlined earlier in my sentencing remark.
    • (iii) The criminality of the offender demands a sterner penalty than a single one-off incident. That is reflected in the sentences imposed above.
    • (iv) In view of the prevalence of this type of offending and the circumstances outlined and referred to in my considerations in this ruling, and taking into account the totality principle as highlighted, the order is as follows:

ORDERS OF THE COURT.

1. Count 1: 8 years Imprisonment.
2. Count 2: 8 years Imprisonment.
3. Count 3: 3 years & 6 Months imprisonment.
4. Count 4: 3 years & 6 Months imprisonment.
5. Count 5: 3 years & 6 Months imprisonment.
6. Count 6: 1 year & 2 Months imprisonment.
7. Count 1 to serve concurrent to Count 2.
8. Counts 4 & 5 to serve concurrent to Count 3.
9. Count 1 to serve consecutive to Count 3 and Counts 1 & 3 to serve consecutive to Count 6.

THE COURT
Hon. Justice Ronald Bei Talasasa Jr
PUISNE JUDGE

^[1] [2021] SBHC 96; HCSI-CRC 97 of 2019 (24 July 2021)
^[2] [2017] SBCA 6; SICOA-CRAC 14 of 2016 (5 May 2017)

^[3] Angitalo v Regina [2005] SBCA 5; CA-CRAC 024 of 2004 (4 August 2005)