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R v Maelauia [2024] SBHC 39; HCSI-CRC 355 of 2023 (16 April 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 355 of 2023

REX

V

DAVID MAELAUIA

Date of Hearing: 29 November 2023
Date of Sentence: 16 April 2024

Ms F Luza for the Crown
Ms R Palmer for the Defendant

SENTENCE

Faukona DCJ:

The Defendant Mr. David Maelauia was charged for two (2) counts. The first is rape contrary to section 136 F (1) (a) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016. The second is incest contrary to section 163(2) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016.

2. On the 3^rd August 2023, when the charges were read to the Defendant, he entered a plea of guilty to both counts. On 2^nd October 2023 the Defendant changed his plea from guilty to not guilty to the charge of rape. On 22^nd of November 2023, the defendant changed his mind again and entered a plea of guilty to the charge of rape. The maximum penalty for rape is life imprisonment and the maximum penalty for incest is 10 years imprisonment.

Facts of the case.

3. The first incident of rape occurred on 29^th January 2023, between 10pm and 11pm inside the bedroom of the defendant and wife at LDA, Betikama area. At that time the complainant and her siblings were sleeping inside their room. The Defendant entered the room and woke up the complainant. He told her to go and sleep in his room and their mother, as he would follow their mother and the baby to LDA area. The complainant did as instruct. As he was lying down to sleep, she felt something heavy on- top of her body. She quickly woke up and saw the Defendant lying on-top of her. At that time, she realized that she was fully naked. She struggled to get up from him but he pushed her down on the bed and penetrated his penis into her vagina. The complainant then cried and continued to struggle as she did not like or did not accept what the Defendant did to her.
4. The second incident occurred on 4^th February 2023, at around 8pm, in a bush at LDA, Betikama area. The Defendant and his wife had an argument and his wife escaped. The Defendant told the Complainant to follow him so that they would go and look for their mother in the garden. The Complainant followed because she felt sad for her mother and wanted her mother to return so that she could breast feed their baby. Whilst the Complainant and the Defendant were walking along the road, the Defendant bent the Complainant’s head forward to the ground from behind. He pulled up her skirt and then penetrated his penis into her vagina. The Complainant felt pain in her vagina. Both incidents occurred when the complainant was about 14 years of age.
5. In a guilty plea charges, the Court of Appeal has offered guidance in Bara v R^[1], which sets out sentencing approach a judge should follow, at paragraph 15-18.
   1. With the guidance available the sentencing judge should identify a starting point. From the starting point there will be adjustment taking into accounts aggravating features, the factors which made the offending more serious.
   2. Then consider the mitigating features, facts which may suggest the sentence is too harsh, often related to the offender. This require a judge to set what he regards as aggravating and mitigating when taken into account in the final sentence or reasons he intends not to take into account.
   3. After identification of aggravating and mitigating features, as how they would affect the starting point, reference should be made to effect, if applicable, of an early guilty plea where discount be given that should be indicated. Where no discount is to be given a reason for that. Equally where allowance be made pre-sentence periods of custody, reason should be given.
   4. Finally, totality of sentence to ensure the end result properly reflect the criminality involved in the offending.

Starting Point for rape.

6. In the case of Bade v Rex^[2], the Court of Appeal set down the starting point for rape as 8 years for contested rape and 6 years for guilty plea. Those starting points was confirmed by R. v Tony Sinatau^[3], paragraph 12 of the judgment.
7. At paragraph13, the Court of Appeal stated that “Bade involved an adult complainant”. This court has previously said in Pana v R, CRAC 13 of 2013, 8^th November 2013, at paragraph 15,
   • “Although the age of a rape victim is always a factor, we consider that, when a victim is below the age of consent, that should always bring the starting point to 8 years”.
8. At paragraph 14, the court stated, “It is time to set a new starting point for offending against children, as we have done in Bade v R, for cases involving adult complaints. We reaffirm the statement above from Pana and lay down that the starting point for offences under S. 130 F and 139 of the Penal Code, as amended in 2016, involving children under the age of consent in a non-contested matter is 8 years.”
9. Apparently, it is now crystalline clear, that with the combination of above authorities and the provision, rape on a girl under consent age, though guilty plea is entered, the starting point is 8 years.
10. Therefore, I set 8 years as starting point for rape.

Starting point for incest.

11. At the moment there is no starting point for the offence of incest as yet. However, I have perused several comparative sentences as guideline. This will assist determine the final sentence.

Aggravating features.

12. There is disparity of age. The defendant was 40 years while the complainant was 14, age disparity is 26 years. The age of the victim makes her young and vulnerable. At 14 she was below the consenting age. The defendant had pre-planned to rape his own daughter by telling her to move to the next room from the room her siblings were sleeping. While sleeping the defendant undressed her and climbed on top. When realizing she was naked, she struggles to free herself but unable because her father was pushing her down and penetrated his penis into her vagina. There is force of some magnitude used. The defendant had robbed her daughter of her innocence to fulfil his sexual desire.
13. The defendant is not a good father to be trusted and rely on for security, support and care. The defendant is in a position of trust and that trust is being breached leaving the complainant a victim of sexual abuse with future uncertainty. Of course, psychological impacts cannot be ruled out and I take judicial notice of.
14. The offence was repeated on two separate occasions. Luckily for the defendant was not charged for rape on the second occasion. But incest is still filthy as rape. It brings about shame and anxiety to the family. Custom was breached as well as law. Undoubtedly, it makes the community frowned and shy away bringing a feeling of rejection and some level of stigma to the victim.
15. The first offending was committed in a family house, a sanctity habitat that supposed to provide fortress must be respected. By committing rape in the home is an infidelity act that makes the home defiled and subject to community condemnation. The second incident was along the road.
16. On both occasions the daughter was tricked to follow the advice of the accused. There is evidence of pre-planning. Over and above the accused must have been fantasizing about his daughter for some time. In the end he carried out his evil ego. He must reap for the evil he has done.
17. Having considered those aggravating factors, I would explicitly up lift the starting point of 8 years to 13 years.
18. Having determined so, what are other facts that I need to consider to reduce the uplift figure? I then therefore, consider the mitigating factors.

Mitigating features.

19. The first set of facts are; that the defendant is married with 8 children, the complainant is the eldest daughter. He was 40 years and unemployed, a peasant who sells local root crops for living, an uneducated man.
20. When a first-born biological daughter and child was sexually abused by penetration of the penis, it would seem those personal circumstances are absolutely dissolved into ashes. All social moral qualifications are denied and defendant should gain nothing out of it.
21. I consider early plea of guilty for incest but reserve for rape. At first instance on 3^rd August 2023 the defendant pleaded guilty, then changed to not guilty on 2^nd October 2023, and then changed to guilty again on 22^nd November 2023. That is not entering a plea of guilty at first opportunity. I would have considered plea for guilty at first instance when the charge was read to him on the first Court sitting. Better instructions should have been given when he engaged a Counsel. In those occasions he was represented by a Counsel. In any event I will consider plea of guilty in such a manner for reducing time wasted to everybody, and avoid the victim of being called and give evidence of the sensitive ordeal which her own father has caused. I give him not the full credit as he would deserve.
22. Other matters as, acknowledging his wrong and genuine remorse as expressed, is noted, but the circumstances surrounding offending is far more outweighs those personal circumstances. Self-realization of a wrong done is crying over spilt milk which one cannot gather or retrieved physically, it is too late though he is courageous enough to face to his own action and consequences normally flows from it.
23. I noted the defendant has no prior convictions. These two offences were his first criminal activity but the worst of its kind that involved his own daughter. That impurity and sin will haunt his family in particular his daughter for years to come. Their family name will be at stake, a talk over subject in their community.
24. As common in all criminal cases, time spent in custody is accounted for. In this case the defendant was placed in custody for 1 year and two months.
25. With those special conditions as mitigating factors I am willing to exercise discretion to lower the figure from 13 by 2 years.
26. Time spent in custody will be deducted from the overall sentence.
27. This sentence reflects the Courts on going approach to deter the offenders and any likeminded men who may have second thought of sexually raping their own daughters or sexually abusing his own child who is under the consenting age. These types of offences are serious with highest magnitude and they warrant immediate custodial sentence. Data has revealed the nature of such offences are on the rise in all the Provinces in Solomon Islands. No wonder Parliament had passed a new Penal Code Amendment Act in 2016 in an attempt to quell the uprising rate of immorality in the societies and homes.

Sentence on incest.

28. I have mentioned earlier at paragraph (12) above that there has not been any set point or starting point for incest, though technically as in this case, incest was done to a child below consenting age. All I have noted are comparative sentences. For instance, R v Piako^[4], where the defendant was charged for two counts of incest. He pleaded guilty. The complainant was the daughter of the defendant and was 12 years at the time of offending. The Court imposed 5 years for each Count of incest to serve concurrently.
29. I the case of R v Evanis^[5], where the defendant was charged for two Courts of incest. He pleaded guilty. The Complainant was the daughter and was 12 and 14 years at the time of offending. The Court imposed 4 years for each Count of incest to serve concurrently.
30. In R v Hecky^[6], the accused, the father had pleaded guilty to two counts of incest. The complainant was 17 years old at the time of offending. The accused was goaled for 3 years imprisonment for each count, to run concurrently.
31. In the case of R v Bako^[7], the accused was the father who charged for 5 counts of incest done to his daughter when she was 11 years old. The defendant pleaded guilty to all the charges and was sentenced to 4 years for each count, to run concurrently. The offences were committed within a period of 10 months.
32. Having assisted by those aggravating factors, mitigating facts and the comparative sentences which I am able to lay my hands on, the highest sentence tariff imposed by court is 5 years in the case of R v Piako.
33. The lowest tariff imposed is 3 years. I should think the sentence in R v Bako should be higher, because the circumstances are serious. There are (5) counts of incest and the victim who was a daughter and was 11 years at the time of firs offending.
34. With the assistance of those comparative sentences I will impose a sentence which I think is appropriate.
35. Upon considering all the aggravating factors I therefore uplift the starting point of 8 years for rape to 13 years, an increase of 5 years.
36. For mitigation features I deduct 2 years, leaving 11 years for rape.
37. For the offence of incest, I impose a sentence of 5 years imprisonment.
38. The total sentence is 11 years for the two Counts to run concurrently. Years spent in custody I year and 2 months be deducted from 11 years.

Orders:

1. The defendant is imprisoned for 11 years for rape.
2. The defendant is imprisoned for 5 years for incest.
3. Both sentences to run concurrently.
4. Years spent in custody be deducted from 11 years imprisonment.
5. Final sentence should be 9 years and 10 months
6. Sentence start to run as of today.

THE COURT.
REX FAUKONA.
DEPUTY CHIEF JUSTICE

^[1] [2018] SBCA 10; SICOA-CRAC 36 of 2017 (11 May 2018).
^[2] [2023] SBCA 39; SICOA CRAC 17 of 2023 (13 October 2023)
^[3] [2023] SBCA 38; SICOA CAAC 9027 of 2023 (13 October 2023).
^[4] [2022] SBHC 87, HCSI-CRC 426 of 2020 (13 May 2022).
^[5] [2008] SBHC 93; HCSI-CRC 374 of 2017 (20 July 2018).
^[6] [2021] SBHC 67; HCSI-CRC 521 of 2019 (10 June 2021).
^[7] Ibid (4).