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R v Kio [2025] SBHC 77; HCSI-CRC 172 of 2019 (11 April 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 172 of 2019

REX

V

PATTERSON KIO

Date of Hearing: 4 April 2025
Date of Sentence: 11 April 2025

Counsel: Ms Rehomora and Ms Cleven for the Crown
Counsel: Mr Waroka for the Defendant

VERDICT AND SENTENCE

1. By amended information filed on 31/03/2025, Mr. Kio was indicted for 3 counts of sexual intercourse (vagina licking) with Miriam Janic, a child who was at least 15 years of age, but under 18 years of age contrary to Section 140 (1) (a) and (b) of the 2016 Act. Count 1, Mr. Kio was alleged to have licked Janic’s vagina in the bush. Counts 2 and 3, Mr. Kio allegedly licked the victim’s vagina inside his own house.
2. This matter entered the High Court process in 2019. The allegations took place in 2017. Mr. Kio was originally charged with a more serious offence in count 1. The serious offence in count 1 has since been nolle or cancelled on 31/03/2025 and the amended information was filed the same day. Counts 2 and 3 remain unchanged. Nolle follows the successful negotiations between prosecution and defence. Mr. Kio did not turn up for his trial during my recent Lata circuit. He advised from Honiara that he will plead guilty.
3. On return from Lata circuit I arraigned Mr. Kio on the amended information on 31/03/2025. Mr. Kio pleaded guilty to the 3 counts in the amended information. I adjourned to 4/4/2025, for sentencing and mitigation and ordered that the agreed facts be filed by 3/4/2025. I am grateful to counsel for their alertness. I urged upon counsel that we must close this 2019 file as soon as possible.
4. The summary of agreed facts shows the following:-
   • (i) The defendant is Patterson Kio of Laro village, Reef Islands, Temotu Province.
   • (ii) The complainant is Mirriam Janic of Nyibanga Temoa Islands, Reef Islands, Temotu Province. She was 15 years old at the time of offending.
   • (iii) The defendant is the complainant’s primary school teacher at Nyibanga Temoa School, in Grade 4 (2016) and Grade 5 (2017). The complainant usually goes to the defendant’s house to assist with house work and babysit his 2-year-old son. The complainant’s mother is a single mother.
   • (iv) On an unknown date between 1 September 2017 and 30 November 2017, the complainant went to their bush garden to cut firewood. On her way to the garden she heard the defendant, her teacher call her name. She turned around and saw the defendant also holding his bush knife in his hand. The defendant asked her who she came with and she answered that she came by herself.
   • (v) The defendant then told the complainant to come closer to him. She moved closer to him and the defendant grabbed her right hand and pulled her over to him. He then told her to lay down on the ground on top of some betel nut leaves. Because she saw the bush knife in his hand, she was afraid and did as instructed.
   • (vi) The defendant then lay on top of the complainant and kissed her mouth. He also fondled her breasts. He told the complainant to take off her skirt. She was afraid and did as she was told. The defendant then proceeded to lick her vagina. After a while he stood up and went away from the complainant. The complainant stood up and wore her skirt. She then went back to the village feeling distressed because of what the defendant did to her.
   • (vii) On another unknown day, between 1 September 2017 and 30 November 2017, the defendant’s wife who was pregnant was in labour thus she went to Manuopo clinic. The complainant’s mother accompanied the defendant’s wife to the clinic. Because the wife was at the clinic, the complainant was told to go and sleep at the defendant’s house with the defendant’s two-year-old son. The defendant would sleep outside at the veranda, whilst the complainant and the son slept in the bedroom.
   • (viii) On the first night that the complainant went to sleep with the defendant’s son, on an unknown date between 1 September 2017 and 30 November 2017, the defendant entered the bedroom and lay on top of the complainant whilst she was asleep. He grabbed her breasts and kissed her mouth. He then took off her skirt and licked her vagina. He also told her not to tell anyone about what happened.
   • (ix) On the second night at the defendant’s house, on an unknown date between 1 September 2017 and 30 November 2017, the defendant again entered the bedroom where the complainant was sleeping next to his two-year old son. The defendant went to the complainant whilst she was asleep and fondled her breasts. She woke up and saw the defendant on top of her. He then kissed her mouth and took off her skirt. After taking off her skirt the defendant licked her vagina. He again told her not to tell anyone.
   • (x) The next day the complainant went back to her house and did not return to the defendant’s house. She also stopped going to school because she could not bear to see the defendant in class. She eventually told a woman in the village about what the defendant had done to her.

Count 1

5. The maximum penalty for each of the 3 offences is 15 years imprisonment. The offences are not very serious compared to offences under Section 139 (1) (a) and Section 136F (1) (a) and (b) of the 2016 Act – which are more serious as reflected in the maximum available penalty of life imprisonment. For this reason, I will put the start point sentence lower than 8 years and start at 5 years. Counsel submits that I should start at 8 years, on the basis of Sinatau and Pige, two binding Court of Appeal decisions.
6. However, I can make three distinctions here. The first distinction is Sinatau and Pige were for much more serious offences which carry a maximum penalty of life imprisonment (both were for offences under Section 139 (1) (a) of the 2016 Act). Because the maximum penalty available in those two cases is big, it justifies a higher start point sentence of 8 years. Conversely in here the maximum sentence available is small (15 years), hence it must justify a lower start point sentence of 5 years.
7. To illustrate my point. If I were to start at 8 years then for count 1 alone, I identify 9 serious aggravating factors namely pre-planning, disrupted education, weapon and intimidation, abuse committed in the home at night, psychological harm and trauma, position of trust breached, young age, disparity of age and weak and vulnerable. I will normally add 1 year for each serious aggravating factor and uplift the start point because increases for serious aggravation should be made in years and not merely in weeks or months (Bade, Court of Appeal 2023). Doing that for count 1, I will add 9 years to the 8 years start point. That will come to 17 years aggravated head sentence before mitigation. We can see that the 17 years already exceeds the 15 years maximum punishment available. I will be overstepping the law, 15 years maximum penalty here. I do not make the law. I interpret the law.
8. The second distinction is Sinatau and Pige were for very serious offences committed on victims of very young tender ages between 5 to 10 years and in Sinatau there was penial sexual intercourse with one of the two victims of 10 years old (a very young tender age girl). In here the victim is young but at the age of 15 years (not tender age).
9. The third distinction is that Sinatau made it specifically clear that the start point sentence for sexual offences under Sections 136F (“rape”) and 139 of the 2016 (“sexual intercourse or indecent act with a child under age of consent”) in a non-contested matter for a child under the age of consent is 8 years. In here it is a non-contested matter for a child under the age of consent but for a case brought under Section 140 of the 2016 Act. I repeat and reaffirm the same point I made in paragraph 5 above.
10. More importantly, the amended charges are brought under Section 140 (1) (a) and (b) of the 2016 Act after serious negotiations between Counsel which resulted in a nolle. It is serious negotiations because the original count 1 was for a very serious offence under Section 139 (1) (a) – sexual intercourse or indecent act with a child under 15 years, having a maximum penalty of life imprisonment. The amended count 1 filed after nolle is brought under Section 140 (1) (a) and (b) for a much lesser serious offence having only 15 years maximum penalty.
11. It is clear to me that parties have negotiated a downward trend in terms of dropping from the more serious to a less serious offence. Logically that downward trend would have brought about lower punishment expectations in the mind of the accused, hence resulting in a guilty plea after the nolle and an amended information was filed on 31/03/2025.
12. Therefore, that downward trend must also logically lead to a downward lowering of the start point sentence from 8 years down to 5 years. No two cases are the same and I have found distinctions to deviate from the two binding Court of Appeal decisions in Sinatau and Pige which both counsel used to suggest a much higher start point sentence of 8 years. In saying all that, I strongly feel that a tariff of 5 years should be the proper start point sentence, in a non-contested matter, where the offence is less serious as in here (maximum penalty of 15 years). I will start at 5 years and not 8 years.
13. I identify the following serious aggravating factors for count 1:-
    • (i) Pre-planning,
    • (ii) Disrupted education,
    • (iii) Weapon and intimidation,
    • (iv) Abuse committed in the home at night,
    • (v) Psychological harm and trauma,
    • (vi) Breach of position of trust,
    • (vii) Disparity of age,
    • (viii) Weak and vulnerable, and
    • (ix) Young age of the victim.
14. For all of the above 9 serious aggravating factors combined, I will uplift the start point sentence by 9 more years. Increases due to serious aggravation should be made in years and not merely in weeks or months (Bade, Court of Appeal 2023). That will bring the aggravated head sentence up to 14 years before mitigation.
15. Then I determine the following mitigating factors to bring the aggravated head sentence downwards:-
    • (i) Guilty plea – An early guilty is beneficial to all concerned and should attract a huge reduction of 30 percent (Pige, Court of Appeal 2023). The Court benefits due to savings in trial time. The victim benefits due to no trauma in recounting her sex ordeals in the witness box. And Kio was truly and sincerely remorseful in admitting his wrongful doings. The 30 percent reduction comes to 4.2 years rounded to 4 years.
    • (ii) First time offender with no previous conviction – I will give 1 year for this clean record.
    • (iii) Delay – The delay here is 6 years from 2019 when the matter entered the High Court process. It will be 8 years if you consider 2017 when the offences were committed. So, there is a big delay meaning there is a serious breach of the defendant’s constitutional right to have his case prosecuted within a reasonable time. I am inclined to give 4 years for the delay but will give 2 years only because some of the delays are attributable to the defendant himself and to the correctional centres for not bringing Kio to Lata last year for my circuit.
    • (iv) Rehabilitation – I give 2-years reduction because Kio is a young man of 40 years and has the potential to learn from his mistakes and come out a better reformed person.
    • (v) Compensation – Is a worthy custom and I recognise it by giving a 1-year reduction.
16. For all of the above mitigating factors combined I will reduce the sentence down by 10 years. The ultimate head sentence after mitigation will be 4 years imprisonment for count 1.

Count 2

17. For count 2, the allegation is the same as in count 1. It is vaginal licking but at a different location and on a different time from count 1. For the same reasons as in count 1, I put the start point sentence at 5 years.
18. I also identify the same 9 aggravating factors as in count 1. I will add one more aggravating for count 2 and that is repetitive offending. Repetitive harm occasioned on the same person is more harmful than the first and a serious aggravation. So, the total aggravating factors for count 2 will be 10 years instead of 9 years. I will uplift the start point sentence by 10 more years for count 2. That will bring me to 15 years aggravated head sentence before mitigation (the maximum penalty available is reached).
19. In terms of mitigations the same mitigating factors for count 1 will remain applicable for count 2. Hence, I will deduct 10 years from 15 years resulting in a final head sentence of 5 years for count 2.

Count 3

20. For count 3, I will have the same start point sentence of 5 years for the same reasons. I will also have 10 aggravating factors as in count 2 because of repetitive offending. That will come to 15 years aggravated head sentence before mitigation. Then I will bring the aggravated head sentence downwards by 10 years due to the same mitigating factors in count 1 and count 2. That will leave me with a total head sentence of 5 years after mitigation.
21. Because these are multiple sexual offending on the same victim even though spread over various months in the year 2017, I will make the sentence terms to run concurrently. Counsel agreed that there should be a concurrent sentence. Hence, I will make the sentence for counts 1 and 2 to run concurrent with the sentence for count 3. This means the defendant will serve a total of 5 years sentence only. However, I will deduct a further 3 years for pre-trial detention time entitlement. The final head sentence the defendant will serve in custodial sentence is 2 years imprisonment at Rove.
22. Mr. Kio, I convict you for the 3 counts you are charged with premised on your guilty plea and summary of agreed facts. For count 1 you are given a 4 years sentence. Counts 2 and 3, will have a 5 years sentence. Sentences for counts 1 and 2 will run concurrent with the sentence in count 3. I will deduct a further 3 years for pre-trial detention time. Your final head sentence to serve is 2 years imprisonment at Rove correctional centre. The 2 years will start to run from today’s date. Order accordingly.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE