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R v Metoula [2022] SBHC 110; HCSI-CRC 464 of 2021 (23 November 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINALJURISDICTION

Criminal Case 464 of 2021

REX

V

OSBORN METOULA

Date of Hearing: 22 November 2022
Date of Decision: 23 November 2022

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

Sentence

Introduction

1. Osborn Metoula you have pleaded guilty to one count of committing an indecent act on a child under the age of 13 years contrary to section 139(2)(a) of the Penal Code as amended by section 5 of the Penal Code (Amendment)(Sexual Offences) Act 2016. The maximum penalty for this offence is 7 years’ imprisonment. You now appear for sentence.

Facts

2. On 2 October 2020 you were drinking with others. You then slept until around 2.00pm on 3 October 2020. As you returned to Venga Village you came to the house where the complainant lives. You went inside. The complainant hid from you as she was afraid. You found her, held her then removed her clothes. You pulled out your penis and rubbed it on her vagina. You prevented her from calling out by covering her mouth with your hand. You took her outside the house and bit her lips and her arm. You were seen by another person who shouted out for you to let the complainant go. You put the complainant down and picked up a stone as a weapon. The other person was close by so you dropped the stone and ran away.
3. You were later arrested and remained in custody for 17 days. You were aged 18 at the time and the complainant was only 9 years old. Your parents have paid compensation of $2,000.00 to the family of the complainant and I am told you are now on good terms.
4. You were previously charged with a more serious offence but yesterday following discussion with your counsel, the prosecution elected to not proceed with that charge and laid the present charge. You have pleaded to that charge immediately you were able to do so.

Victim Impact Statement

5. Understandably your offending has had a devastating effect on the complainant. She has trouble sleeping. She no longer plays with her friends. She now does not go to your village.
6. I record that she suffered physical injuries from you as well.

Personal Circumstances

7. You are now aged 20. You attended school to grade 6 and have not returned to school as a result of your offending.
8. You have not previously been convicted of an offence.
9. The prosecution has submitted that while personal matters are to be taken into account there effect is less than in cases that do not involve sexual violence. The Court of Appeal has confirmed what this Court said in R v Ligiau and Dori [1986] SBHC 15:
   • “In sexual offences as a whole, and rape and attempted rape in particular, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes.”

Aggravating Factors

10. The Crown has pointed to a number of aggravating factors. Through your counsel, you acknowledge those aggravating factors. The first is the young age of the complainant. As she was just 9 years old you have you have changed the enjoyment of her childhood. The prosecution also points to the disparity in your ages but I regard that to be sufficiently taken into account by finding that the age of the complainant is an aggravating factor. In Pana v Regina [2015] SBCA 19 the Court gave guidance in relation to cases of defilement. The Court said:
    • “The actual age of the victim should still be taken into account as a possible aggravating factor over and above that. It would not amount to double accounting because it is the fact the victim is a child which brings the case into the eight year starting point and so the actual age may be considered as an additional factor. Its aggravating effect on the sentence will usually be greater the younger the child.”
11. While you are not facing the same charge, you are being sentenced for sexual offending against a child. In my view the age of the complainant is an aggravating factor as she was four years younger than the age that applies to offending against section 139(2)(a).
12. You offended against the complainant in her own home, a place where she was entitled to feel safe from a predator such as you.
13. You used violence in your offending. You covered her mouth with your hand and you bit her on her lips and her arm causing injury. You picked up a stone but fortunately the presence of another person caused you to drop it and flee.
14. The prosecution also submits that I can find that there has been psychological harm to the complainant. The Court of Appeal in Regina v Liva [2017] SBCA 20 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

15. You have pleaded guilty to the offence. That plea is an indication of remorse. It has saved the complainant from the trauma of having to relive the offending in Court. It is also an acceptance that you did what she has made a complaint about. In Pana the Court of Appeal spoke of the benefit of a guilty plea. At paragraph [29] the Court said:
    • “In many cases where sexual offences are involved, a plea of guilty can result in a very substantial reduction, sometimes as high as a third, of the total penalty. In the present case, the plea of guilty was only entered after the trial commenced. It did, as we have said, spare the complainant from the ordeal of giving evidence and therefore deserves some recognition.
16. You have not previously come to notice. Your counsel submits that you are a person of good character.
17. You were only 18 at the time of your offending. As this Court noted in Saomatangi v Regina [2021] SBHC 129 you were just a year older than the cut off period for someone to be sentenced as a juvenile.
18. In accordance with custom, your family has paid compensation to the family of the complainant to restore good relationships.
19. Your counsel draws to my attention that you spent time in custody when you were first arrested and he submits that you co-operated with the Police.

Principles of Sentencing

20. In imposing sentence, I must take into account the need to hold you accountable for the harm that you have done to the complainant and to the community. You need to understand the harm you have caused. I must promote in you a sense of responsibility for and an acknowledgement of that harm. I need to denounce your conduct and deter you and others from such offending. I need to protect the community from you and others who may be minded to act as you have. I also need to provide for your reintegration into the community and for your rehabilitation.
21. I must bear in mind the gravity of your offending and the seriousness of this type of offending and the need for consistency in sentencing levels. To that end the sentence must provide both specific deterrence for you and general deterrence for others in the community.

Starting point

22. Counsel have drawn my attention to a number of other cases. Each case is dealt with on its own facts. The facts and the serious aggravating factors of your offending require me to consider your case as being one of the more serious to be charged under section 139(2)(a) of the Act. Having considered the cases to which counsel have referred, and the range of final sentences imposed I must recognise that the complainant was only 9 years old. She was hiding from you in her own home when you sexually abused her. You also used physical violence on her and have left her having to deal with the long term effects of your offending. I therefore take a starting point of 4 years’ imprisonment.
23. I give you credit for your guilty plea. I allow a reduction of 15 months for the plea and the remorse you have expressed. I take into account your youth and your previous good character. I reduce the sentence by a further six months for those matters. For the rest of your mitigating features and personal circumstances I allow a further 3 months reduction. That leaves a final sentence of 2 years imprisonment.
24. I then consider section 44 of the Penal Code. When the Court has in mind a final sentence of two years or less the Court has power to suspend the sentence. I must balance your age and the desirability of keeping you from a further loss of liberty against the seriousness of your offending. Your counsel did not submit that a suspended sentence was appropriate for your offending. He was right to refrain from such a submission. In my view your offending is so serious that to suspend the term of imprisonment would require me to ignore the need for both specific and general deterrence. Those in the community need to be reminded that those who choose to act as you did must face the consequences of such offending in spite of your age.
25. I therefore do not make an order suspending your sentence. You are sentenced to 2 years’ imprisonment and the authorities are to take into account the time you have already spent in custody.

Orders

26. The Accused is convicted and sentenced to two years imprisonment. The prison authorities are to take into account the time he has spent in custody.
27. The name and any identification of the complainant are permanently suppressed.

By the Court

Justice Howard Lawry PJ