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R v Leinga [2022] SBHC 111; HCSI-CRC 467 of 2021 (23 November 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 467 of 2021

REX

V

DANIEL LEINGA

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

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

Sentence

Introduction

1. Daniel Leinga, you have pleaded guilty of two counts of committing an indecent act on a child under the age of 15 years contrary to section 139(2)(a) of the Penal Code [“the Code”] as amended by section 5 of the Penal Code (Amendment)(Sexual Offences) Act 2016. You are the cousin/brother of the victim’s father. She was only 6 years old at the time. You now appear for sentence.

Facts

2. In June 2019 you went to the complainant’s kitchen. You removed her clothes and touched her vagina. The complainant’s mother saw her naked and learned what had happened. Later the same day you led the complainant to your room where you again touched her vagina with your finger. As the cousin/brother of her father you were in a position of trust with the complainant and you breached that trust not once but twice. I emphasis she was only 6 years old.
3. Yesterday the prosecution accepted a proposal from your counsel, elected to not proceed with the more serious charges laid and presented an amended information. You pleaded guilty to both counts in the amended information.

Personal circumstances

4. You are now aged 22 and were just 18 at the time of your offending.
5. You reached grade 5 at school and now work as a farmer.

Aggravating factors

6. There are three main aggravating factors. The first is the young age of the complainant, being just 6 years old. The prosecution has pointed to the difference in your ages. Having found that her age is a matter of aggravation I consider that finding adequately deals with the disparity in your ages.
7. The second is the breach of trust. As the cousin/brother of her father you were in effect an uncle of the complainant.
8. The third is the repetition of your conduct.
9. In addition the prosecution submits that I can find that there has been psychological harm to the victim. 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

10. You have pleaded guilty and to an extent you have shown remorse.
11. You have not previously been convicted.
12. You were only 18 at the time of your offending.
13. Your family has paid compensation that has been accepted by the family of the complainant. A total of $300.00 plus two pigs were given to her family. I am told that as a consequence, good relationships in the family have been restored.
14. You co-operated with the police, admitting your offending when interviewed.
15. There has been a delay in this matter coming to a conclusion. The initial delay was following the complaint being made. That as a delay of only two months. The main delay has been since you were committed to the High Court. That delay was not of your making nor the fault of the prosecution. The High Court circuits to Lata were suspended through much of the time from committal to yesterday as a consequence of COVID-19 then following the closure of the airport. This means you have had this hanging over you for more than 3 years.

Principles of Sentencing

16. 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.
17. I must bear in mind 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

18. Counsel have referred to a number of authorities. In Regina v Kaneta [2018] SBHC 52, the offender pleaded guilty to a similar charge on a 7 year old and was sentenced to two years imprisonment in respect of that charge. In Regina v Tata [2020] SBHC 151, the offender was aged 44 and was regarded as a grandfather. The victim was aged 8 years. The Court imposed a sentence of 2 years’ imprisonment. Counsel also referred to other cases where the complainant was a lot older.
19. For Count 1, I regard the appropriate starting point after the aggravating factors as being two years and six months imprisonment. For count 2 the starting point after aggravating factors is 3 years’ imprisonment. This is to take into account the repetition of your offending so soon after the complainant’s mother had learned what you had done.
20. For your guilty plea and remorse on count 1 I allow a reduction of 10 months’ imprisonment. For count 2 the reduction is 12 months’ imprisonment. For the delay in this matter proceeding, through no fault of your own I allow a further three months’ reduction on each count or the remaining mitigating factors, in particular your youth, I allow a further 3 months’ reduction for count 1 and two months’ reduction for count 2.
21. That leaves a final sentence for count 1 of sentence of 14 months imprisonment and for count 2, 19 months’ imprisonment.

Consecutive/Concurrent

22. You have pleaded guilty to both offences that occurred on the same victim on the same day.
23. The authority regarding the sentencing for more than one offence is Laui v Director of Public Prosecutions [1987] SBHC 4. The Court said:
    • “When sentencing at the one time for two or more offences, the court will always need to consider whether to make the sentences concurrent or consecutive. The question that must be decided by the court in this regard is whether or not the offences were committed in the course of a single transaction. If they were, the sentences should be concurrent. If not them consecutive sentences are appropriate subject to the overall total.
    • The test of a single transaction is not just a matter of time but whether the offences really form part of a single attack on some other person's right. Thus, two separate offences even if occurring close together in time, for example, taking a vehicle without consent and then driving it dangerously, would merit consecutive sentences. On the other hand, the sentences for a series of assaults against the same person even though spread over a lengthy period of time should properly be made concurrent.”

Later the Court said:

• “Where concurrent sentences have been passed because of the single transaction principle, the court must ensure that the gravity of the offence is properly represented by the sentence for the principal offence.”

24. Laui was approved by the Court of Appeal in Alu v Reginam [2016] SBCA 8. When confirming that concurrent sentences are appropriate for offences arising from a single transaction, the Court of Appeal also confirmed that the repetition of an offence on the same victim is a matter of considerable aggravation. I remind myself of the comments from the Court in Laui, that a series of assaults on the same person even though spread out over a lengthy period of time, should properly be concurrent.
25. The two sexual acts for which you appear for sentence were on the same victim on the same day. In my view they should properly be regarded as part of the one transaction. The sentences will therefore be concurrent.
26. When I consider the totality of the offending I am of the view that 19 months imprisonment does not adequately reflect the harm you have done. The sentence for count 2 will therefore be increased to 22 months’ imprisonment.
27. As the total sentence is less than two years I am required to consider the suspension of the sentence pursuant to section 44 of the Penal Code. In my view, although you were only 18 at the time of your offending I must take into account the age of the victim and the fact that your offending was repeated. In imposing sentence I must keep in mind the need for both general and specific deterrence to promote the protection of the children in our community. If the whole of your sentence was suspended in my view the element of deterrence would not be adequately addressed. I consider that in order to promote your rehabilitation and your reintegration into the community I can however suspend part of your sentence. After you serve 12 months imprisonment the balance of your sentence will be suspended.

Orders

1. The Defendant is convicted on Count 1 and sentenced to 14 months’ imprisonment.
2. On count 2 the Defendant is convicted and sentenced to 22 months’ imprisonment.
3. The sentence for count 2 is concurrent with the sentence on count 1.
4. Twelve months of the sentence is to be served in custody. The balance is to be suspended.
5. The prison authorities are to take into account any time spent on remand for this matter.
6. The name of the victim and any identification of her is permanently suppressed.
7. The Court has explained section 45 of the Penal Code to the Defendant.

By the Court
Justice Howard Lawry PJ