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R v Saito [2019] SBHC 30; HCSI-CRC 482 of 2017 (27 March 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case Number 482 of 2017

REGINA

V

MASAO SAITO
Defendant

Date of Hearing: 22, 25 March 2019
Date of Sentence: 27 March 2019

Mrs. S Ramosaea and Ms. F Fakarii, Counsel assisting.
Mr. M Pitakaka and Ms. M Tahu Counsel assisting

SENTENCE

1. The defendant, Masao Saito has been convicted on one count of possession of child exploitation material contrary to section 144(3) of the Penal Code (Amendment)(Sexual Offences) Act 2016 and acquitted of the other 14 counts for which he had been charged with.

The facts of the offence.

2. The facts of the offence for which he had been convicted of can be summarised as follows. They relate to digital photographs confiscated by police from his Sony laptop consisting of 14 images of nude or naked children which had been identified as Exhibit F. They were images of naked children (girls) playing and swimming at the beach area at Karaina, White River. The defendant was around the area at that time according to the evidence, taking photos of the scenario when the photos were taken from his camera. He did not deny that he took those photos and stored them in his laptop.
3. Some of the photos had zoomed in on the private parts of a child and in others had been cropped to contain only the front genital part of a child, while squatting, standing or sitting down. It is not denied that there was no physical control, direction, influence or manipulation in any way or, in particular to pose in any sexual manner.
4. What was offensive about those photos was the way the defendant had zoomed in on the private parts of the children as separate images stored in his laptop.

Submissions of prosecution.

5. Ms. Fakarii referred to a number of case authorities, three^[1] in Australia and one^[2] from New Zealand, in support of her submission that the offence of possession in this instance, warranted a custodial sentence to be imposed not only as punishment but to deter others from similar conduct and to send out a strong and clear message from the court to the community and public that this type of behaviour or conduct will be not be tolerated and treated lightly by the courts in this country.
6. Ms. Fakarii noted that in the case R. v Degioannis [ibid], in relation to the count of possession of child exploitation material, the Court relied on the six categories of seriousness that had been determined by the Australian National Victim Image Library (ANVIL) scale of categories, which had appropriately ranked the categories from 1- 6 as follows:
   • (i) Category 1: Depictions of children with no sexual activity;
   • (ii) Category 2: Non- penetrative sexual activity between children; or solo masturbation by a child;
   • (iii) Category 3: Non-penetrative sexual activity between adult(s) and child(ren);
   • (iv) Category 4: Penetrative sexual activity between children or adult(s) and child(ren);
   • (v) Category 5: Sadism, humiliation or bestiality; and
   • (vi) Category 6: Animated or virtual depictions of children engaged in activity covered by categories CAT 1 to CAT 5.
7. In that case, files of images that were recovered ranged from levels of seriousness from category 1 – category 4 as follows:
   • Category 1: 124 images and 1 video file;
   • Category 2: 6 images and 7 video files;
   • Category 3: 1 video file; and
   • Category 4: 2 images and 18 video files.

The lowest category 1, contained the highest number of images, but there were quite serious and objectionable images up to level 4 seriousness, which would have contained images of penetrative sexual activity between children or adults and children. In contrast, the level of seriousness in this defendant’s (Mr. Saito’s) case, was on the lower end, that is category 1, with no images of sexual penetration, forms of manipulation, control or posing by the children.

8. The victim in that case R. v. Degioannis was 15 years old and the images had been obtained by the defendant from his sexual relationship with the victim. For that offence of possession the defendant was sentenced to 3 years imprisonment but reduced to 2 years and six months on account of a guilty plea. It is clear that the level of seriousness was much higher than the present case.
9. In the New Zealand case, R. v. Allen [ibid], Ms. Fakarii noted that the Court relied on three categories of seriousness for possession of child exploitation material. Those had been described as:
   • (i) Category A, being the worst category of material involving the depiction of serious sexual abuse of children involving penetrative sex and in some cases worse.
   • (ii) Category B, material involving something less than fully penetrative sex but is not of the same type of objection available in Category B as it is to Category A.
   • (iii) Category C, material which is still objectionable but a lot less serious than Category A or Category B.
10. In that case, six material were classified under Category A, being the worst category of offending for possession; a number of materials for both Category B, being the second worst category, and Category C, being the least objectionable level of seriousness. The sentence imposed on a guilty plea was two years. Again that case is distinguishable to this case, for in this case, it only contained the least objectionable form of material, with nothing else falling on the other categories of seriousness.
11. When Ms. Fakarii was asked in court what category she would place the defendant’s images, she conceded that under the Australian guideline, it would be Category 1, and with the New Zealand standard, under Category C, both being the least objectionable form of materials possessed.
12. In her submissions, she asked the court to take into account the general need to protect children, being the most vulnerable in our society and to impose an appropriate sentence that will reflect that gravity and obligation imposed upon members of society, not to take advantage of the community settings in this country and produce materials for their own vile gratifications.

Defence submissions.

13. Learned Counsel, Mr. Pitakaka for the defendant reminded the court of its obligations to take into account the circumstances of the offender and offending in arriving at an appropriate sentence.
14. He reiterated the defendant did not know it was prohibited to take such photos, noting the contextual surroundings in which he did. He raised fourteen mitigating factors in favour of the accused, which for purposes of mitigation and for arriving at the appropriate sentence, I take into account; these are as follows.
    • (i) First that the defendant is a first offender.
    • (ii) His age at 69 years and is married with one daughter of 29 years. His other daughter died at a young age.
    • (iii) That he is a man of previous good character.
    • (iv) No records of prior criminal convictions.
    • (v) He cooperated with police.
    • (vi) His admission of taking the photos reflecting an element of remorse.
    • (vii) No personal knowledge of the children depicted in the photos.
    • (viii) No likelihood of re-offending.
    • (ix) The element of delay in investigation since arrest to trial.
    • (x) He has always attended to court hearings and complied with bail conditions.
    • (xi) His contribution to society as an engineer when he first arrived in the country working at the National Referral Hospital.
    • (xii) His age at 69 years old, an elderly man.
    • (xiii) Has suffered a lot of distress through newspaper coverage of his case; and
    • (xiv) To a certain extent he has experienced an element of imprisonment by being confined to his strict bail conditions, residing at his room since his arrest on December 8, 2016 to date, a period of 3 years, 3 months and 17 days. He has suffered enough. During this period his mother passed away in June 2018 but he was not able to return home because of his bail conditions.
15. Mr. Pitakaka also asked the court when considering what appropriate sentence to impose to consider first, his submission that the court should assess whether section 35 of the Penal Code can be imposed in the circumstances of the defendant. That section provides:
    • “Where, in any trial, the court thinks that the charge against the accused person is proved but is of the opinion that, having regard to the character, antecedents, age, health or mental condition of the accused, or to the trivial nature of the offence or to the extenuating circumstances in which the offence was committed, it is not expedient to inflict any punishment, the court may, without proceeding to conviction, make an order dismissing the charge either absolutely or conditionally.”
16. Mr. Pitakaka submits that his age and health should be taken into account and the fact of his confinement due to his strict bail conditions. In addition, with a lot of media coverage, Honiara being a small city, had brought a lot of shame and embarrassment and that he had suffered enough.
17. The second alternative argument submitted is that the court should, pursuant to section 24(3) of the Penal Code (cap. 26), consider imposing a fine instead of a custodial sentence. Learned Counsel sought to submit that while section 144(3) of the Penal Code (Amendment)(Sexual Offences) Act 2016, did not expressly include as a penalty the imposition of a fine, he submitted section 24(3) of the Penal Code, being a penal provision of general application, should be construed as applying in this instance and giving discretion to the court in the circumstances of this case to consider whether it would be more appropriate to impose a fine than a custodial sentence, bearing in mind that a custodial sentence should be imposed only or reserved for the most serious offences and where a fine or any other sentence other than a custodial sentence is appropriate. He referred in particular to the provisions of United Kingdom Criminal Justice Act 2003, section 152(2), which sets out the custody threshold argument for imposing custodial sentences:
    • “The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”

I take note of that threshold argument in determining the appropriate sentence in this case.

18. Section 24(3) of the Penal Code reads:
    • “A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or instead of imprisonment.”
19. This is a penal provision of general application and provides guideline, a fortiori discretion, to a sentencing court, to consider whether the imposition of a fine would be more appropriate in the circumstances of the case before it. The absence of a monetary penalty clause, does not prohibit a court from imposing a fine as the appropriate sentence in lieu of, or in addition to the imposition of a custodial sentence. While section 144(3) of the Penal Code (Amendment) (Sexual Offences) Act 2016 did not include a monetary penalty as one of the possible sentences, it did not expressly exclude the imposition of a fine. Accordingly, I am satisfied that that section applies as an alternative sentence in appropriate circumstances.
20. The third alternative argument raised by learned Counsel is that in the event a custodial sentence is deemed to be appropriate, that the court should consider having the sentence suspended or part of it suspended, provided it is not more than two years (see section 44(1) of the Penal Code). Learned Counsel referred to the guidelines set out in the classic English Text, Archbold: Sentencing Guidelines 2017, at pages 77 and 78, in which two steps for assessing sentence on the offence of possession of indecent photographs of children, were set out.
21. The first step was to determine the category of offences using the table provided as follows:
    • Category A: Possession of images involving penetrative sexual activity.
    • - Possession of images involving sexual activity with an animal or sadism.
    • Category B: Possession of images involving non-penetrative sexual activity.
    • Category C: Possession of other indecent images not falling within categories A or B

Category A being the most serious or objectionable materials and Category C being the least objectionable materials.

22. Once the category of seriousness had been determined, the court should then use the corresponding starting points also set out in Archbold’s Sentencing Guidelines [ibid] to reach a sentence within the proper category range. That table is also set out herewith.
    • Category A: Starting point is 1 year’s custody.
    • Category range:
    • 26 weeks’ 3 years’ custody.
    • Category B: Starting point is 26 weeks’ custody
    • Category range:
    • High level community order – 18 months custody.
    • Category C: Starting point is High level community order.
    • Category range:
    • Medium level community order – 26 weeks’ custody (≈ 6 months)
    • (Note, words in brackets added).
23. Mr. Pitakaka points out that if the above guideline is considered in the context of the defendant’s offending, he submits that the court should then go on to consider having the sentence suspended for a period of time when all the mitigating factors he had alluded to are taken into account.
24. In her short response, Counsel Mrs. Ramosaea submits that the offensive material were taken and converted by the defendant by zooming in on the private parts of the children and so should be viewed as being serious warranting a custodial sentence to be imposed. She also submits that the context in Solomon Islands is different and that the court should set its own guidelines.

Analysis of the submissions.

25. I thank counsels for assisting the court with case authorities in Australia, New Zealand and the United Kingdom, which have been helpful in terms of how courts in those jurisdictions deal with offences of possession of child exploitation material. This being the first of its kind in this country under the new amendment of the Penal Code Act, being, the Penal Code (Amendment)(Sexual Offences) Act 2016, the categories described in those case authorities are relevant and provide clear guidelines as to how the courts in this country can approach similar offences of possession of child exploitation material. The categories set out in those jurisdiction are quite similar in terms of the level of seriousness to be attached to offences of possession of child exploitation materials. I note the categories in the New Zealand jurisdiction are similar to that of the United Kingdom.
26. Having carefully considered those categories, I adopt the categories set out in Archbold 2017: Sentencing Guidelines as being relevant and applicable to the case before me, including the starting point which the court may use to determine sentence. The details and merits of each case will differ and is to be reflected in the sentence that the court deems appropriate in each case.
27. While it is not disputed that the category of seriousness to be imputed to the images found in the possession of the defendant fall within Category C, being the lower category, the seriousness of the offending cannot be overlooked in terms of the way and manner in which they were acquired, taken possession of and manipulated or adapted for his personal gratification. I take those surrounding circumstances into account and note with concern that a clear message of deterrence needs to be put out by the court.
28. Not only was it wrong for the defendant to take those photos, but the motive which lie behind them was all the more sinister. He knew what he was doing and the real reason or purpose behind what he was doing and cannot hide behind the screen of ignorance when the images displayed speak for themselves, as being indecent and offensive. They could no longer form part of his collection of photographs of the beautiful surrounding scenario and or for aesthetic purposes and or, to add to his photographic album of the natural surroundings. They had become tainted and offensive through his deliberate and intentional manipulation of those images.
29. I accept submissions of Counsels Ms. Fakarii and Mrs. Ramosaea that it was wrong for him to take advantage of the innocent children swimming, playing and enjoying themselves in their natural environment and to take photos of their naked bodies so that he can manipulate those photos to view images of their private parts, that had been zoomed in, cropped or enlarged, for his distorted personal gratification. He admitted in evidence that it was wrong to do so in his home country, and so should have known better that it was equally wrong to do so here. I find this to be an aggravating feature, taking advantage of the innocency of the children and taking their photos without them knowing that the defendant was going to turn them into objectionable images.
30. The very young age of the children depicted in the photos is also an aggravating feature in this case as well as the number of photos, 14 in all.
31. I find his age not to his advantage or a mitigating factor, for with age that should be accompanied by more wisdom, maturity and responsibility. Instead, I find his actions to be that of someone devoid of sound discretion, consideration and respect, a fortiori for the innocent children whose images he had tainted with a dirty mind.
32. The court has a duty in the circumstances of this case to send out a clear message to the community and at large, including foreigners who come into the country that this type of behaviour cannot be condoned, is wrong, despised and unacceptable to the community in Solomon Islands and those who offend in this way will expect an immediate custodial sentence to be imposed. The court has a duty to protect young children playing and swimming in their natural environment from the predatory activity of adults with evil motives or minds.
33. I have taken time to consider submissions of learned Counsel Mr. Pitakaka, whether a conditional discharge under section 35 of the Penal Code, and or, a fine, adequate forms of punishment, in the circumstances of this case, taking into account as well the 14 mitigating factors mentioned by Counsel in his submissions, as well as bearing in mind the principles of retribution, deterrence, prevention and rehabilitation, but come to the contrary conclusion that an immediate custodial sentence is appropriate in this case, all the more, to send out a clear message of deterrence to anyone thinking of doing the same that they can expect an immediate custodial sentence even if the category of seriousness in terms of possession of child exploitation materials is at the lower end. This is how serious the court considers this type of offence.
34. I do not accept the submission that he did not know that it was wrong to take photos of the children playing in the nude and turning them into offensive and objectionable images. He is a man of mature age and is expected to have known better. I also note that the difficulties experienced, the shame, confinement and hardships experienced while awaiting trial were brought upon himself through his indiscretions, wrong actions and behaviours. As an elderly gentleman, an engineer, much was expected of him not only from the country but also from his home country that had sent him to come here in the first place to serve at the National Referral Hospital. He represented his country and had misplaced that trust and brought disgrace upon himself.
35. Having carefully considered those options and mitigation factors urged upon me by Counsel Pitakaka and balanced them with the circumstances of the offence and aggravating features highlighted in this case, I am satisfied a sentence of six months imprisonment to be appropriate in the circumstances of this case taking into account the elements of retribution and deterrence, prevention and rehabilitation into account. A clear firm message needs to be sent out that this type of offending will not be tolerated, a fortiori taking advantage of the vulnerability of young children in this country. Children are the jewels of this nation and need to be protected by all members in the community and not taken advantage of through such objectionable behaviour.
36. I am also satisfied however, in the light of the strong mitigating factors raised, the delay element in the conclusion of the trial, the fact as well that the circumstances of offending fall in the lower end of the category, that he has cooperated well with police and complied with his strict bail terms and that after service of his term of imprisonment he will be immediately deported out of the country as an undesirable person, that he will be required to serve the two full months and the remainder to be suspended for 12 months.
37. It is only appropriate that as a consequential order that I direct that all the images in the laptop and any storage devices to be erased and permanently deleted after lapse of the statutory period of appeal. He has a right of appeal if aggrieved by this sentence. The sentence is to be served with immediate effect.

ORDERS OF THE COURT:

(1) Enter conviction of the defendant Masao Saito of count 1 for possession of child exploitation material.
(2) Impose sentence of imprisonment of six months herewith and direct that he is to serve the two months completely with immediate effect and the remainder to be suspended for 12 months.
(3) Impose consequential orders that all images to be deleted after the right of appeal has lapsed, if no appeal is made.

The Court.
Sir Albert R Palmer, CBE

^[1] R v Degioannis [2019] ACTSC 47; R v Brackenrig [2010] QCA 1; and R v Wharley [2007] QCA 295.
^[2] R v Allen [2018] NZDC 489