Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

R v CM [2024] SBHC 31; HCSI-CRC 449 of 2023 (22 March 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 449 of 2023

REX

V

CM

Date of Hearing: 20 March 2024
Date of Sentence: 22 March 2024

Ms L Pellie for the Crown
Mr D Houa for the Accused

SENTENCE

Introduction

1. CM you have pleaded guilty on two charge of rape contrary to section 136F (1) (a) and (b) of the Penal Code as amended by section 5 of the Penal Code (Amendment) (Sexual Offences) Act 2016. The maximum penalty for rape is life imprisonment. You have also pleaded guilty to three counts of sexual intercourse with a child under the age of 18 years and for whom you were in a position of trust contrary to section 140(1)(a) and (b) of the Penal Code as amended by section 5 of the Penal Code (Amendment)(Sexual Offences) Act 2016. The maximum penalty for each of those offences is 15 years’ imprisonment. You now appear for sentence.

Facts

2. Counsel have provided a document setting out the agreed facts. That document provides an introduction followed by the details of your offending. That document is as follows with the names of the complainants replaced with initials:

“INTRODUCTION

1. The defendant is the complainants’ biological father. He is an assistant Paramount Chief of Malino Village and a Seventh Day Adventist Church Pastor.
2. The first complainant is S K, she was 17 years old at the time the defendant had sexual intercourse with her on three separate occasion.
3. The second complainant is N T, she was 18 years old at the time the defendant had sexual intercourse with her on two separate occasion.
4. The first three (3) incidents happened at Taua Village, Duff Islands, Temotu Province inside their family home on unknown dates between 1^st January 2018 and 31^st December 2018.
5. Incident four happened at Kalua bushland, Duff islands, Temotu Province on an unknown date between 1^st January 2021 and 31^st January 2021.
6. The fifth incident happened at Malino Village, Duff Islands, Temotu Province on an unknown date between 1^st August 2021 and 31^st 2021.

First incident – count 1

7. The first incident happened on an unknown date between 1^st January 2018 and 31^st December 2018 inside their family home when no one is at home. The defendant being in a position of trust, had sexual intercourse with the first complainant without her consent by penetrating her vagina with his penis. After, he told her not to tell anyone and threatened to kill her.

Second incident – count 2

8. The second incident happened on another unknown date between 1^st January 2018 and 31^st December 2018, different to the date in the first incident, inside their family home when no one is at home. The defendant being in a position of trust, had sexual intercourse with the first complainant without her consent by penetrating her vagina with his penis. After, he told her not to tell anyone and threatened to kill her.

Third incident – Count 3

9. The third incident happened on another unknown date between 1^st January 2018 and 31^st December 2018, different to the dates in the first and second incident inside their family home when no one is at home. The defendant being in a position of trust, had sexual intercourse with the first complainant without her consent by penetrating her vagina with his penis. After, he told her not to tell anyone and threatened to kill her.

Fourth incident - Count 4

10. The fourth incident happened on an unknown date in January 2021 inside a garden house in the night. The second complainant was sleeping alone in the garden house when she heard her father called out to her to open the door. She ignored him. He then pushed opened the door and went inside the house. The defendant told her that he wanted to have sexual intercourse with her but she refused. He then took a half firewood and hit the complainant’s lower back. The complainant felt pain and she cried. The defendant removed her clothes and penetrated her vagina with his penis without her consent and knowing about or being reckless as to the lack of consent. After, he told her not to tell anyone and threatened to kill her and her mother.

Fifth incident – count 5

11. The fifth incident happened on an unknown date in August 2021 inside their family home at Malino Village in the night. The second complainant and her two other sisters, namely Ramelyn Halehano and Samantha Koro, were sleeping inside their permanent house. The defendant crept into the room where the complainant was sleeping and woke the complainant up. He removed her clothes and penetrate her vagina with his penis without her consent and knowing about or being reckless as to the lack of consent. She felt pain and cried. After, the defendant told her not to tell her mother and her grandmother and threatened to kill them.
12. After two days, the complainant Ms Naelyn Tana felt severe pain in her abdomen and experienced bleeding for two weeks. That’s when she finally told her grandmother, her aunt Judith Vaeolia and her mother about what her father did to her.
13. The accused paid compensation of $500 cash and a wooden canoe worth $2500. The compensation was paid to the complainants’ uncles.”
3. You are now aged 44 or 45. The First Complainant was just 17 at the time of your offending and the Second Complainant was aged 18. You are married with five children including the two complainants. You are a pastor in your church and an assistant paramount chief.

Deterrence

4. You are the father of both complainants. They were entitled to feel safe in your presence. You abused the parental trust not once but 5 times. Your offending demonstrates a gross abuse of power that is inconsistent with the role of a father, a pastor and an assistant paramount chief. The sentence I impose must be one that sends a message to you and others in the community that people who sexually abuse young women, especially members of the abuser’s family that must face the consequence of such criminal behaviour. You have brought shame on yourself, your family, church and your community.

Aggravating factors

5. The first aggravating factor relied on by the Crown is the disparity in your ages.
6. Three of the offences took place in your own home where your daughter was entitled to be safe and secure. You made it a crime scene. In the fourth count the offending took place in the bush house where your daughter was sleeping and in count 5 she was sleeping with her sisters. The fact that offending occurred at night is also a matter of aggravation.
7. There was a gross breach of trust as a father, as a pastor and as a chief. As a pastor concerned with the pastoral care of others and no doubt preaching about the love of God, your own conduct defiles the role of father, pastor and chief.
8. Your offending was repeated and it involved two of your daughters.
9. You used actual violence on one daughter and threatened violence on your other daughter if she told about your criminal behavior. You even threatened to kill her mother. In relation to the actual violence you use a piece of wood as a weapon causing harm to your daughter.
10. The Crown has also asked me to take judicial notice of the emotional and/or psychological harm that the complainants have suffered. The Crown relies on the Court of Appeal decision in Regina v Liva [2017] SBCA 20 which confirmed what it had said in Regina v Bonuga [2014] SBCA 22:
    • “There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider judicial notice needs to be taken of the devastating effect on the victims of sexual offending, especially young victims as in this case. The psychological trauma cannot be ignored.”

Mitigating factors

11. Your counsel has submitted that you are a first time offender and are of good character. That may have been so at the time of the first count but you continued to offend and for some years now could not possibly claim to be of good character or a first offender. The most that could be said is that you do not have previous convictions.
12. Your counsel correctly submits that you have entered a guilty plea but you had previously pleaded not guilty to all counts. Your trial was to be heard this week but just last week your counsel advised the Crown that you would change your plea. You have however now acknowledged your offending which is important for the complainants and spares them the ordeal of reliving the events in Court.
13. You have paid compensation in the cultural sense and I accept that compensation is important in restoring relationships within the family. It cannot however undo the harm you have done to your own children.
14. Counsel submitted that you have co-operated with the Police. That is so. It is difficult to understand why after acknowledging your criminal behavior you chose to plead not guilty until this week. Counsel also records that you have spent time in custody. While that is not a mitigating factor it is something the Court will take into account.

Starting point

15. Counsel have referred the Court to the Court of Appeal cases of Bade v Rex [2023] SBCA 39, Rex V Sinatau [2023] SBCA 38 and Pana v Regina [2013] SBCA 19. It is clear that they are the correct authorities in fixing a starting point. The Court must then make an adjustment for aggravating factors and mitigating factors. In Bade the Court made it clear that where there is a guilty plea the starting point for the rape of an adult is 6 years’ Imprisonment if there are no aggravating factors. That figure also takes into account the discount for the guilty plea. In Pana the Court confirmed that a starting for sexual offending on children below the age of consent is 8 years’ imprisonment.
16. I must consider the structure of the sentence. The authority regarding the sentencing for more than one offence is Laui v Director of Public Prosecutions [1987] SBHC 4. The Court in Laui 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 them 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.”

17. In Bade v Reginam [1988] SBHC 10 the Court said:
    • “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. It is trite to point out that a man who commits, say, five offences should receive a heavier sentence than a man who only commits one of them.
    • However there are two situations where this rule must be modified. The first, that where a number of offences arise out of the same single transaction and cause harm to the same person there may be grounds for concurrent sentences...”
18. The approach taken in Laui and in Bade was approved by the Court of Appeal in Alu v Reginam [2016] SBCA 8 where the Court of Appeal confirmed the way that Courts should treat offending repeated on the same victim. If the offending could be said to be part of a single transaction the sentences should be concurrent rather than consecutive. However the Court went on to say at paragraph [18]:
    • “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.”
19. In this case the offending was repeated offending against the same complainant on three occasions. The offending was similar in nature. The offending in relation to the first three counts was therefore a single transaction. The repetition of the offending is a serious aggravating factor. However the offending against the second complainant some three years later is an indication of your continuing abuse of power. The sentence for the offending in counts 4 and 5 will therefore be consecutive on the sentences for counts 2 and 3.
20. In your case for the first complainant I take into account that your daughter was just 17 years old. I take a starting point of 7 years’ imprisonment. I then increase that to take account of the following aggravating factors: The repetition of your offending, the fact that your offending was in the sanctity of the family home, the fact that you threatened to kill your daughter and her mother. The fact that the offending involved a gross breach of trust is already part of the charge but the fact that you continued when you knew your daughter did not consent all increase the sentence. For offending against the first complainant then there is an uplift of 5 years. For the guilty plea and the fact that you had not previously come to notice I allow a reduction of two years for the first of those counts. For the other mitigating factors I allow a further reduction of one year. For counts 2 and 3 the discount is reduced but you are still entitled to credit for your guilty plea. The end result is that for count 1 the sentence is 9 years’ imprisonment and for counts 2 and 3 the sentence is 10 years’ imprisonment. Those terms are to be served concurrently.
21. I now turn to the offending against the second complainant. In terms of Bade I take a starting point of 6 years. There needs to be considerable uplift to reflect the violent use of a weapon, the breach of trust, the repetition of the offending and on one occasion raping her in the presence of her sisters. From a starting point of 6 years a further 6 years uplift is warranted. The guilty plea has already been taken into account in the starting point in accordance with the directions of the Court of Appeal in Bade. For other factors in mitigation I allow a reduction of one year. Had the offending been limited to counts 4 and 5 a final sentence of 11 years imprisonment would be appropriate. However the sentence must be consecutive on the sentences imposed on counts 2 and 3.

Totality

22. A final sentence of 21 years then must be then take into account the totality principle. The Court of Appeal in Selo v Regina [2017] SBCA 17 considered a Crown appeal and reduced the sentence from 25 years to take into account the totality principle, reducing the starting point to 21 years. I consider that a sentence of 21 years is potentially crushing and therefore reduce the total sentence to 15 years imprisonment.

Orders

(1) The Accused is convicted on the count 1 and sentenced to 9 years’ imprisonment.
(2) The Accused is convicted on the count 2 and sentenced to 10 years’ imprisonment.
(3) The Accused is convicted on the count 3 and sentenced to 10 years’ imprisonment.
(4) The Accused is convicted on the count 4 and sentenced to 5 years’ imprisonment.
(5) The Accused is convicted on the count 5 and sentenced to 5 years’ imprisonment.
(6) The sentences on counts 1, 2 and 3 are concurrent. The sentences on counts 4 and 5 are concurrent with each other but consecutive on the sentences for counts 2 and 3.
(7) The authorities are to take into account the time spent in custody in calculating his release date.
(8) The name and any identification of the Complainants are permanently suppressed.

By the Court
Justice Howard Lawry
Puisne Judge