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R v Kimasaru [2024] SBHC 152; HCSI-CRC 137 of 2024 (25 October 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 137 of 2024

REX

V

LUKE KIMASARU

Date of Hearing: 13 September 2024
Date of Decision: 25 October 2024

Counsel; Mr Tonowane and Mr Tamaika for the Crown
Counsel; Ms Aisa and Mr Fiuga for the Defendant

SENTENCE

1. Mr. Kimasaru, I convicted you for two counts of sexual abuse against your own daughter by verdict dated the 6/09/2024. Count 1, you were convicted for persistent sexual abuse on your own daughter by having sexual intercourse with her on three separate occasions between June/July 2020.
2. Count 2, you were convicted for rape on the same victim, your daughter. The rape incident occurred in December 2022. Following the said convictions, the outstanding issue is to determine the appropriate punishments.
3. The two offences you are convicted of are both serious. For persistent sexual abuse and rape, the maximum penalty is life imprisonment. You can see this in Section 142 (2) and Section 136F (1) (a) and (b) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (No. 3 of 2016) – hereafter referred to as the “2016 Act”.

Count 1 - Starting point sentence

4. In the year 2020, your daughter was 14 years old. In the year 2022, she was around 16 years old. According to Sinatau Court of Appeal 2023, the starting point sentence for unlawful sexual intercourse with a child under 15 years is 8 years. Hence for count 1, I will set the start point sentence at 8 years.

Aggravating factors

5. I identify the following aggravating factors: -
   • (i) Position of trust breached – This is the first and the worst aggravating factor against you. You are the victim’s father. You have a moral duty to protect your own daughter from all forms of sexual abuse and defilement. Instead you did the exact opposite to her due to your immoral sexual desires. That is a serious and regrettable inhuman breach of your moral duty as a father.
   • (ii) Young age of the victim – At the time of first offence in the year 2020, your daughter was 14 years old. At this age (or even at 16 years in 2022, second offending), a father should normally feel proud and content that he has worked hard to raise a teenage daughter. It is a success and a blessing to have a teenage daughter. Children are gifts from God. Raising children is hard work. At the same time, it is rewarding to see your children grow up to be a man and woman who will carry on with the legacy you have imparted to them. In your case, I wonder what legacy you have imparted onto your daughter. The younger the victim, the more serious the aggravation effect. And it is not double accounting because the fact that the victim is a child (under 15 or 18 years) brings the case in the starting point and actual age is an additional factor to consider. I consider 14 and 16 years old, as young age, not only physically but also in terms of sexual purity, virginity and intactness, which are highly valued in female children under 15 or 18 years.
   • (iii) Age disparity – Your daughter was 14 years old in 2020 and 16 years old in 2022. You were around 43 years old in 2020. There was an age difference of 29 years. As an adult and a father, you are expected to be responsible and accountable for protecting your teenage daughter from sexual abuse.
   • (iv) Psychological harm and trauma – The Court should always take judicial notice of the long-term impacts and trauma on the victim, despite lack of medical and professional evidence (Bonuga, 2014 Court of Appeal). Despite lack of observable physical harm, in all rape or sexual offence cases, the level of psychological harm that creates ongoing issues for the victim is well documented and can be taken judicial notice of as per Bonuga (Liufirara, Court of Appeal 2022).
   • (v) Commission of the offence in the home and at night – The daughter victim was inside the comfort of her own house under the care of her own father sleeping at night. She was entitled to security and safety from her own father. This is what a family safety net is all about. Children ought to feel secure and loved by their own parents. Instead you turned that safety net in the home into a crime scene for your own daughter victim. Your daughter now holds resentment towards you because in her evidence to the court, she said she does not want to call you her father anymore after what you did to her.
   • (vi) Pre-mediation/Pre-planning – This offending has a lot of pre-planning aspect to it. You cannot say it was a coincidence. You had sex with your own daughter in your own house and next to your own bush garden. Certainly, you must have thought about it. You must have planned it. You must have looked for when the house was empty. And in June/July 2020, you planned it in a way that you asked your daughter to follow you to the family bush garden. At the garden instead of doing garden work to feed your family, you were feasting on your own daughter sexually. Certainly, you cannot say it was not planned.
   • (vii) Repetition of the offence – In many cases, as in the present case, the fact an offence is repeated on the same victim is a matter of considerable aggravation which can properly and understandably increase the sentence for the subsequent offence (Alu v Reginam [2016] SBCA 8; SICOA-CRAC 27 of 2014 (22 April 2016). Defense counsel argued that for the offence of persistent sexual abuse, you cannot aggravate for repetition because the fact that it is repetitive makes it the offence of persistent sexual abuse in count 1. Counsel forget that the repetition in here is in respect of the subsequent charge in count 2 (rape). Hence, repetition of offence on the same victim is applicable here.
   • (viii) Use of weapon – Evidence shows that you carry a knife at the times of offending. Although you did not use it to inflict injuries on your victim, you used it to threaten the victim. That threat created fear in the mind of the victim and she submitted to your sexual desires and plans to have sex with her.
   • (ix) Offence committed in the presence of the mother/wife – The evidence showed that you had sexual intercourse with your daughter victim in your own room and in the presence of your own wife. Your wife sat down and watched. Both your wife and daughter were helpless because they fear you could kill them. They were crying. I do not have words to describe how terrible this experience might have been for your wife and daughter. The evidence showed that you terrorised your wife and daughter when you raped her in your own room. Your daughter was fast asleep in her own room around 12 mid-night. You were sleeping with your wife in your own room. You told your wife to go and wake your daughter up. Your wife went but your daughter did not want to come to you and pretended that she was not hearing her mother calling her. You insisted and sent your wife the second time. Your wife told your daughter that she must come to you without delay before you get impatient and angry. Your daughter out of fear came to your room where you had sex with her whilst her mother was watching (see paragraphs 49 and 50 of the verdict).
6. For 8 of the above 9 serious aggravating factors combined (repetition reserved for count 2), I will uplift the sentence by 9 more years (about one year for each aggravating factor). That will bring me to a total head sentence of 17 years before mitigation for count 1. Increases due to serious aggravating factors should be made in years and not merely in weeks and months (Bade, Court of Appeal 2023).

Mitigating factors

7. Then I will reduce the sentence downwards due to the presence of mitigating factors. The first one is first time offender with no previous conviction. I will allow 3 years reduction.
8. This is a case where the aggravating factors far outweighs the mitigating factors. There are fewer mitigating factors only. Hence, I will consider the defendant’s personal circumstances and cooperation with the police and deduct another 2 years. If there were other mitigating factors present, I will not normally consider personal circumstances. For count 1, I will impose 12 years custodial sentence term.

Count 2

9. Count 2 I will have a start point sentence of 8 years even though the victim was 16 years old in year 2022. She was still under 18 years (child). I will regard it generally as unlawful sexual intercourse with a child (under 18 years). I can also suggest that for a daughter under 18 years raped by her own father, there should be a start point sentence of 8 years irrespective of whether there was contested or non-contested trial.
10. Court should convey a strong message that fathers should not rape their own daughters. Anyone who wants to see this offending flourish can dispute this start point sentence. It is disgusting to see fathers turning onto their daughters to satisfy their sexual gratification. For lack of better words, I would merely say fathers are eating their own sperm. It is scary and insensitive to say this. But that is how immoral the problem has become. It is not what we expect in a country where we pride ourselves in rich cultures and Christian moral values and teachings. Hence a higher start point sentence is justified.
11. I will add the same aggravating factors above for count 2 (including repetition). I must say though that count 2 is more serious in the manner I found in the evidence in paragraph 5 (ix) above. I refer to it as a terrorising manner. The total head sentence before mitigation is therefore 17 years.
12. Then I will deduct 5 years for the same mitigating factors as in count 1. That will bring me to 12 years sentence term for count 2. However, I will increase the sentence for count 2, because repetitive offending will cause more harm than the first to the victim. As per Court of Appeal case of Alu cited above, repeated offence on the same victim, is a matter of considerable aggravation, which can properly and understandably increase the sentence for the subsequent offence.
13. Additionally, the manner of offending in count 2 is more serious. I described it above as terrorising the victim. The accused raped his daughter whilst the mother stood by and watched (repeat paragraph 5 (ix) above). This is unheard of in my life time. I am 52 years now. I only heard of fathers raping their daughters but not when the mother is watching. Court must take a strong stand to arrest this kind of barbaric crime intruding into our homes. Our home should be a safe place for our children to be properly raised and groomed for adulthood. I will increase the sentence for count 2 by 3 more years and put it at 15 years.

Sentence to be concurrent

14. I will make the sentence for count 1 to run concurrent with the sentence for count 2. That means you will serve a total of 15 years imprisonment. If I make the sentences to run consecutive it will mean 27 years imprisonment. That will be too excessive and will have a crushing effect on you.

Conclusion and Orders

15. As I stand back and look at the concurrent sentence imposed, I can say that it is an appropriate punishment for 2 offences that have a maximum penalty of life imprisonment each. I can also say that it is an appropriate punishment for a crime that is becoming prevalent in our society and is a sickening crime because fathers are now turning on their own daughters to satisfy their sexual gratification. I allude to above that fathers raping their daughter(s) in the parents’ room in the presence of the wife or mother is unheard of in my life time. In the courts we hear about the sad reality of fathers or step fathers having sex or raping their own daughters as if nothing is wrong. We need to tell the culprits and the community at large that something is seriously wrong with that behaviour.
16. Parliament condemns sexual abuse against girls and women in the 2016 Act and envisioned to protect them from sexual abuse by introducing new sexual abuse offences and increasing the penalty. Court in turn must assist Parliament to arrest a sickening crime in our society. Court can do this by imposing hefty punishments. This will deter the offender and like-minded fathers out in the community. Court’s duty is to uphold the law being the primary custodian of the law. And in this case, the 2016 Act was enacted to protect women and girls from sexual abuse by men who are in a domestic relationship to their female victims. That is the law I must uphold.
17. I will sentence the defendant to 15 years imprisonment. This sentence will start to run from September 2023, when Kimasaru was first remanded.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE