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R v Tohomarau [2023] SBHC 4; HCSI-CRC 348 of 2021 (13 March 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No.348 of 2023

REX

V

LESLIE TOHOMARAU

Date of Hearing: 9 March 2023
Date of Decision: 13 March 2023

Ms Suifa’asia for the Crown
Mr D Kwalai for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. Leslie Tohomarau, you have been found guilty on five counts of indecent assault, one count of defilement and one count of attempted rape. All the offences were committed on the same victim over a 12 day period. You now appear for sentence.

Facts

2. In the last week of August 2007 the victim was aged 12 years. She was in year 6 at school and was at home each day because of the time off around the year 6 examinations. Each morning for 5 days you went to the house and required the victim to engage in sexual activity. You touched her breasts, poked her vagina, pushed your penis into her mouth and required her to suck your penis and when you ejaculated you made her swallow your semen. You required her to masturbate you. On the second occasion you did not put your penis in her mouth but stuffed a cloth in her mouth making it difficult for her to breathe. She lost consciousness while you rubbed your penis against her vagina. You threatened her, telling her you would kill her if she told anyone and you would kill the person she told. The following week on 4 September 2007 the victim was eating fruit on the verandah when you came up the stairs. She tried to run away but you caught her by the arm and pulled her to a bedroom. You pushed her onto the bed and removed her clothes. You rubbed a cream on to your penis and on to her breasts and vagina. You poked your finger into her vagina then pushed your penis into her vagina. You stopped when you could not fully penetrate her. You then masturbated and ejaculated, spreading the semen on her vagina. You said you would hit her if she told anyone. On 7 September 2007 you made her suck your penis then you tried to penetrate her with your penis. She kept struggling and moving her legs. As she did that your trousers fell from the bed and keys fell on the floor. This distracted you and she was able to get away. She went outside and wrapped a table cloth around her. You later came out and again threatened her, you pushed her head and swore at her. You did not return. You turned 26 in the last week of August 2007. The victim was aged 12. You are her adopted brother. At the time you did not live in the family home as you were a probationary police officer.

Personal circumstances

3. I note you have continued to work as a police officer until your suspension as a result of the charges you faced. You married and had children but your wife has since died. Your mother in Kirakira now cares for your children.

Aggravating factors

4. As the adopted brother of the victim you were in a position of trust and you breached that trust.
5. The offending was repeated sexual abuse over a period of 12 days.
6. The offending occurred in the family home, a place where she was entitled to feel safe.
7. You threated to hit or kill the victim if she told anyone. You ensured her silence by threatening to kill anyone she might tell.
8. The prosecution has submitted that as you were a police officer and expected to help keep the public safe I should treat your employment as an aggravating factor. There is merit in this submission however in the circumstances I do not propose increasing the sentence on account of your employment as the gross breach of trust as a brother of the victim sufficiently covers the concern raised. Similarly the age disparity is sufficiently taken into account by the other aggravating factors.
9. I consider that the psychological harm your offending has caused is an aggravating factor. The victim impact statement clearly sets out the devastating effect your offending has had on the victim.

Mitigating factors

10. You have no previous convictions. However by 4 September 2007 you had abused the victim on five occasions. You could not be said to have been of good character by 4 September. The Crown has also drawn to my attention what the Court previously said in about personal circumstances. 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.”
11. Your counsel has submitted that the delay in prosecuting this matter and in reporting the matter are matters that should be taken into account in mitigation. So far as the delay in reporting the matter, I reject that submission. It is to a large extent the consequence of your offending and the threats you made. You were committed to the High Court on 14 June 2021. With the outbreak of COVID – 19 impacting trials in 2022 and your trial proceeded in January 2023 I do not consider the delay to be such as to merit a significant reduction in any sentence to be imposed. It is correct however that the offending came to light in 2012 and it is now around three and a half years since the complaint was made to the Police.

Principles of Sentencing

12. In imposing sentence, I must take into account the need to hold you accountable for the harm that you have done to the 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.
13. I must bear in mind 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

14. Counsel have referred to a number of authorities. In relation to counts 1 to 5, your counsel has referred to R v Hina [2014] SBHC 6, to R v Aubasi [2013] SBHC 1 and R v Hoka [2012] SBHC 152. He submits that sentencing for cases of indecent assault range from 1 to 3 years. That is so, however there can be a significant range of culpability in the circumstances of each case. In relation to the count of defilement and for attempted rape the Court is assisted by Ligiau and Dori which was affirmed by the Court of Appeal in Soni v Reginam [2013] SBCA 6.
15. In Ligiau and Dori the Court said:
    • “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.”
16. The Court went on to discuss matters of aggravation. The Court said:
    • “The crime should in any event be treated as aggravated by any of the following factors: (1) violence is used over and above the force necessary to commit the rape; (2) a weapon is used to frighten or wound the victim; (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind; (6) the victim is subjected to further sexual indignities or perversions; (7) the victim is either very old or very young; (8) the effect upon the victim, whether physical or mental, is of special seriousness.
    • Where anyone or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.”
17. In Pana v Regina [2013] SBCA 19, the Court of Appeal discussed the offence of defilement. At paragraph [17] 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.”
18. The Victim was just 12 years old. The maximum penalty for the offence is life imprisonment. For the offence of defilement it is appropriate to take a starting point of 8 years but there would need to be an increase to take account of the aggravating features, in particular the breach of trust, the threats to kill, the fact that the offending took place in the victim’s home and the effect on the victim.
19. For the count of attempted rape it was only the struggling of the victim and the distraction that occurred when your trousers fell off the bed and the keys fell on to the floor that allowed the victim to flee.
20. The Crown has helpfully referred to the case of R v Rafiti [2012] SBHC 150 which has some similarities to your case. There were however two victims but the offender was a police officer convicted of 4 counts of indecent assault, two counts of attempted rape and one count of rape.

Discussion

21. In structuring the sentence I am mindful that the offending was repeated a number of times and that the offending was against the same victim.
22. The authority regarding the sentencing for more than one offence is Laui v Director of Public Prosecutions [1987] SBHC 4. The Court said:
    • “When sentencing at the one time for two or more offences, the court will always need to consider whether to make the sentences concurrent or consecutive. The question that must be decided by the court in this regard is whether or not the offences were committed in the course of a single transaction. If they were, the sentences should be concurrent. If not then consecutive sentences are appropriate subject to the overall total.
    • The test of a single transaction is not just a matter of time but whether the offences really form part of a single attack on some other person's right. Thus, two separate offences even if occurring close together in time, for example, taking a vehicle without consent and then driving it dangerously, would merit consecutive sentences. On the other hand, the sentences for a series of assaults against the same person even though spread over a lengthy period of time should properly be made concurrent.”

Later the Court said:

• “Where concurrent sentences have been passed because of the single transaction principle, the court must ensure that the gravity of the offence is properly represented by the sentence for the principal offence.”

23. Laui was approved by the Court of Appeal in Alu v Reginam [2016] SBCA 8. When confirming that concurrent sentences are appropriate for offences arising from a single transaction, the Court of Appeal also confirmed that the repetition of an offence on the same victim is a matter of considerable aggravation. I remind myself of the comments from the Court in Laui, that a series of assaults on the same person even though spread out over a lengthy period of time, should properly be concurrent.
24. Your offending was clearly a single transaction although the repetition of the sexual abuse is a matter of considerable aggravation. I consider the most serious offence is the defilement of the victim. I take a starting point of 8 years’ imprisonment. For the aggravating factors relating to that offence there must be an increase of two years’ imprisonment. For the charge of attempted rape recognizing the aggravating factors I consider the sentence should be no less than 5 years’ imprisonment. The indecent assaults were serious offences of their kind and had the offending been carried out after the amendment to the Penal Code in 2016 would have carried a much higher penalty. For the first count I consider a sentence of 2 years’ imprisonment is appropriate and for the remaining counts three years’ imprisonment is appropriate.
25. It is necessary to look at the totality of your offending. The sentence for the count of defilement before considering any mitigating factor would be 10 years’ imprisonment. Concurrent sentences for the rest of your offending does not adequately reflect the criminality involved and the harm you have inflicted on the victim. I therefore increase the sentence for the defilement by a further 18 months. That makes a total of 11 years and 6 months’ imprisonment. For matters of mitigation which include your lack of previous convictions and the length of time you have had this hanging over you I reduce the sentence by one year. That makes a total sentence to be served of 10 years and 6 months’ imprisonment. The sentences on the remaining counts are concurrent with the sentence for defilement.
26. The community needs to be reassured that those who prey on children for their own sexual gratification will face serious consequences in the Courts.

Orders

1. The Accused is convicted on counts 1, 2, 3, 4, 5, 6 and 7.
2. The Accused is sentenced to 2 years’ imprisonment on count 1.
3. The Accused is sentenced to 3 years’ imprisonment on each of counts 2, 3, 4 and 5.
4. The Accused is sentenced to 10 years and 6 months’ imprisonment on count 6.
5. The Accused is sentenced to 5 years’ imprisonment on count 7.
6. The sentences on all 7 counts are to be served concurrently. The time spent in custody is to be taken into account in calculating the release date of the Accused.
7. The name and any identification of the victim are permanently suppressed.

By the Court
Hon. Justice Howard Lawry PJ