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R v Kerovo [2021] SBHC 153; HCSI-CRC 6 of 2021 (22 November 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 6 of 2021

REGINA

V

JIMMY KEROVO

Date of Hearing: 18 November 2021
Date of Decision: 22 November 2021

Mr Andrew Meioko for the Crown
<r Benham Ifuto’o for the Defendant

Sentence

Bird PJ:

1. On the 15^th November 2021, the defendant Mr. Jimmy Kerovo was found guilty and convicted subsequent to a trial by this court on four counts of sexual intercourse with a child under 15 years contrary to section 139 (1) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. One count was in respect of the complaint by Junita Sanasopo, a child of 11 years and the other three counts were in respect of the complaint by Lilly Soriwai, a child of 9 years old.
2. I must remind you that the offence for which you are charged is very serious and it carries a maximum sentence of life imprisonment. Notwithstanding the prescribed imprisonment term, the courts are empowered under section 24 (2) of the Penal Code (cap 26) to impose a shorter sentence depending on the peculiar circumstances of each case. In the case against you, I must weigh the aggravating features and the mitigating features in each offending in order to determine the appropriate sentence.
3. In respect to the first information and the complaint by Ms Junita Sanasopo, you were convicted of one count of sexual intercourse with a child under 15 years. It is submitted by Mr. Meioko of counsel for the Crown that the tender age of the complainant is a very serious aggravating feature against you. The complainant was a 11 years old child at the material time and that age is well below the consenting age. At that age, she is not in any position to even comprehend and nor to understand what you were doing to her. That type of offending was described by Pallaras J (as he was then) in the case of Regina v Pana HCSI-CRC 408 of 2013 in the following terms “A crime of this dimension is difficult to comprehend. To assail a completely helpless infant in such an offensive way is a complete affront to the dignity and humanity of the child. The community is rightly repelled by such sickening, self-indulgent conduct particularly where there is a total disregard to the safety, the health and the well-being of such a small child”. Those comments speak very well of the attitude of the courts in the sentencing of sexual offenders of very young children. The courts frown at such offending and will take a firm stand in sentencing.
4. Also of consideration and guidance in the sentencing of offenders in sexual related cases are the guidelines set out by the Court in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 412. It was noted in that case that apart from other circumstances in each offending, the court had set out four factors that must be taken into account in sentencing. The four factors included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. It is submitted by Mr. Meioko of counsel for the Crown that there is a huge age disparity in your case. At the time of offending, you were 68 years old and the complainant was 11 years old. The age difference between you and the complainant was 57 years. At a ripe old age of 57, you have allowed yourself to stoop very low and committed the offending. Your sexual behaviour is unbecoming of a matured person like yourself.
6. The court had heard evidence from the complainant in court. It is obvious that the offending was premeditated. According to the evidence of the complainant, you used to give her money. Your house is located near the road to school and you normally see children going to and fro from school. As the complainant was returning home from school, you called her into your house. You had sexual intercourse with the complainant in your house on the 20^th September 2019 and gave her money afterwards. You lured the complainant into your house for your own sexual gain by giving her money.
7. Another aggravating feature in your case is the emotional and psychological harm occasioned to the complainant. The court had observed and noticed that the complainant was under great stress and trauma whilst giving evidence in the trial. Notwithstanding the fact that there is no psychological report on the complainant the court, can take judicial notice of those facts. That was the view of the court in the case of Regina v Bonuga [2014] SBCA 22 and applied in the case of Regina v Liva [2017] SBCA 20. The Court of Appeal had stated inter alia, “There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider that 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”. It was devastating for the complainant to be sexually molested and even more devastating to give evidence in a contested trial.
8. In respect of the second information and the complaint by Lily Soriwai, you have been convicted on three counts of sexual intercourse with a child under 15 years. The alleged offending occurred between the 1^st January 2018 to 31^st December 2018. At the material time, the complainant was 9 years old.
9. It is submitted by Mr. Meioko of counsel for the Crown that the tender age of the complainant is a very serious aggravating feature in this case. I need not repeat all that I have said in paragraph 3 of this sentence but to add that consent is not a defence in such offending as the current. It is so unfortunate that the complainant was exposed to an unlawful sexual activity at a very young age.
10. There is also disparity of age in your case. You were 66 years old in 2018 and the complainant was only 9 years old. The age disparity between you was 57 years. That age difference is a very huge gap and that makes your offending serious.
11. There is also an abuse of position of trust. In the cross-examination of the complainant as well as in your evidence in chief, it was a fact that in 2016 and with the permission of her father, you adopted the complainant into your family. She lived with your family for a couple of months and then returned to her father. In your own evidence, you said that the complainant was well looked after by your family during the period she was with you. The complainant’s father had much trust on you to take good care of his daughter because of the cordial relationship you had with his family. You have breached the trust placed upon you when you sexually molested the complainant.
12. I am also inclined to accept that there was premeditation of the offence. In her evidence in court, the complainant stated that on two other occasions after the first incident, you actually went to the complainant’s house and took her to your house. On one occasion, you took her to your house with her father’s permission. It was whilst she was sleeping in your house that you sexually molested her. It is obvious from that evidence that you had bad motive when you took the complainant to sleep with you at your house.
13. The court had also noted that you have committed the offending on the complainant on three separate occasions. During the first incident, you undressed the complainant on your bed inside your house and pushed your penis inside her vagina. On the second occasion, also at your house at night time, you undressed the complainant and licked her body, hand, mouth and vagina with your tongue. On the third occasion, also inside your house, at night time, you undressed the complainant and pushed your penis in her vagina. The court is concerned that even after the first incident, you could have realised that what you did to the complainant was wrong and could have refrained from doing it again. That had never occurred to you and you continued to sexually molest the complainant on two other separate occasions.
14. I have also noted that the offences you committed on the complainant all occurred at night time. You have used the cover of the night to sexually molest the complainant in the guise that that she was your family member. Your neighbours or friends would never have suspected that you have continuously molested the complainant in your own house.
15. In relation to the psychological harm occasioned on the complainant, I would reiterate what I have said in paragraph 7 of this sentence.
16. On your behalf, Mr. Ifuto’o of counsel had made submissions on your personal circumstances. I am told that you are 69 years of age and married with 4 adult children. You have no previous conviction which makes you a first offender. I am however minded to note the comments of Chief Justice Ward in the case of Regina v Ligiau and Dori [1985-1986] SILR 214 to the effect that in sexual offences cases as a whole, matters of mitigation personal to the offender must have less effect on sentence than in most other serious cases. Having viewed that ratio, it could be safe to say that there is little value in any mitigating submissions personal to yourself. I have also noted that you have been remanded in pre-trial custody in this case. I would also take into account that these matters were not reported to the police until after 1 to two years.
17. In order for me to impose an appropriate sentence in your case, I am guided by the views of the Court of Appeal in the case of Pana v Regina [2013] SBCA 19 whereby it was held that the sole fact that the child is below the age of consent should in itself bring the starting point to eight years whether the conviction is for rape or defilement. It is noted that before the 2016 amendment to the Penal Code, the offence under s.139 (1) was the offence of defilement.
18. In the case of Regina v Milamae [2020] SBHC 105, the defendant was sentenced to 9 years imprisonment with a starting point of 8 years. The aggravating features brought it up to 11 years and the reduction on mitigation brought it back down to 9 years imprisonment. In the case of Regina v Balekwai [2020] SBHC 84, HCSI-CRC 276 of 2020, the defendant used his finger on the complainant’s genitalia. The defendant was 53 years old and the complainant was 4 years old. The defendant was sentenced to 8 years imprisonment.
19. In the case of Regina v Fiuga [2019] SBHC 75, the complainant was 8 years old and the defendant was 22 years. There was a guilty plea in that case and no repetition of the offending and compensation was paid. The court imposed a sentence of 9 years and reduced it by 2 years for rehabilitation because of the youthfulness of the defendant. Other cases cited by both counsel for the Crown and the defence were also guilty pleas and sentences imposed ranged from 5 years to 8 years imprisonment.
20. After having stated the above, I would now turn my mind on the issue whether the sentences that I would impose against you should be served concurrently or consecutively. On the outset, it is clear that there are two separate information both filed on the 26^th January 2021 against you. Each of the information was in relation to two separate victims and two separate dates. The offence committed is nonetheless the same.
21. In the case of Laui v DPP [1987] SBHC 4, HC-CRAC 011 of 1987 and approved and applied in the Court of Appeal case of Alu v Regina [2016] SBCA 8, SICOA-CRAC 27 of 2014, it was the court’s view that offences arising out of a single transaction would necessarily attract concurrent sentences.
22. In your case, there is a single charge in respect of the complaint by Junita Sanasopo. There are three counts in respect of the complaint by Lilly Soriwai. In view of the fact that the complainants are two different victims, the court is of the view that the sentences in respect of the first and second victims would be consecutive sentences. On the other hand, the sentences on the second information on three counts of sexual intercourse with a child under 15 years will have to be concurrent sentences.
23. Having determined the issue of concurrent and cumulative sentences against you, I will now turn to the actual sentence that I shall impose against you for each offending. For the offence against Junita Sanasopo, I put your starting point at 8 years imprisonment. For the aggravating features against you, I will increase that sentence by 2 years. For the mitigating features submitted on your behalf and also noting the ratio enunciated in the Ligiau & Dori case, I will merely reduce your sentence by 6 months. The total sentence that you will serve is a period of 9 ½ years imprisonment.
24. On the second information with three counts of sexual intercourse with a child under 15 years, and on count 1, I will also put your starting point at 8 years imprisonment. For the aggravating features in your case, I will increase that sentence by 2 years. For the mitigating features submitted on your behalf and also noting the ratio enunciated in the Ligiau & Dori case, I will merely reduce your sentence by 6 months. For count 1, you are hereby sentenced to 9 ½ years imprisonment.
25. On count 2, I have noted that you have repeated the offending on the same victim. I therefore put your starting point at 9 years imprisonment. For the aggravating features in your case, I will increase your sentence by 2 years. For the reasons stated above, I will reduce the sentence by 6 months. The sentence imposed on count 2 is 10 ½ years imprisonment.
26. On count 3, the offence is also committed on the same victim. I put your starting point at 9 ½ years imprisonment. For the aggravating features, I will increase the sentence by 2 years. For the same reasons stated above, I will reduce your sentence on count 3 for 6 months. The sentence imposed on count 3 is 11 years imprisonment.
27. Having considered the individual sentences in both cases, the total sentence imposed is a period of 20 ½ years. Taking into account the totality principle, it is further my view that a period of 20 ½ years imprisonment can be seen as inappropriately harsh and will have the effect of a crushing sentence. On that basis, I would therefore order that 2 years of the sentence on the first victim be suspended for good behaviour. I further order that that the first 6 years of the sentence on the second victim be served concurrently with the order on the first victim. The total effective sentence on both information therefore would be an imprisonment term of 11 ½ years. I order accordingly.

Orders of the Court

1. The defendant Mr. Jimmy Kerovo is hereby sentenced to 9 ½ years imprisonment on one count of sexual intercourse with a child under 15 contrary to section 139 (1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is hereby also sentenced to 9 ½ years imprisonment on count 1 of the second information.
3. The defendant is also sentenced to 10 ½ years imprisonment on count 2 of the second information.
4. The defendant is hereby sentenced to 11 ½ years imprisonment on count 3 of the second information.
5. The second in orders 2, 3 and 4 above are to be served concurrently.
6. The sentence in order 1 is to be served cumulative to orders 2, 3 and 4 above.
7. On the principle of totality, 2 years of the sentence in order 1 is suspended for 2 years on good behaviour.
8. I further direct that the first 6 years of the cumulative sentence in order 2, 3 and 4 are to be served concurrently with the sentence in order 1.
9. Total effective sentence to be served is one of 11 ½ years.
10. I direct that the time spent in pre-trial custody is to be deducted from the total sentence.
11. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge