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R v Pikiti [2022] SBHC 112; HCSI-CRC 400 of 2020 (2 December 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 400 of 2020

REX

V

JOHN PIKITI

Date of Hearing: 1 December 2022
Date of Decision: 2 December 2022

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

Lawry; PJ

Sentence

Introduction

1. John Pikiti you have pleaded be on three charges of having sexual intercourse with a child under the age of 15 contrary to section 139(1)(a) of the Penal Code as amended by section 5 of the Penal Code (Amendment)(Sexual Offences) Act 2016. The maximum penalty for this charge is life imprisonment. The victim is a relative of your wife and was aged 13 at the time of your offending. You now appear for sentence.

Facts

2. You are in the position of an uncle of the victim. In October 2019 the victim was 13. She was born on 3 November 2006. You were living in a small house in Manupoti with your wife and three children. You and your wife visited your wife’s brother in the village of Bania. Your wife asked if the victim could go to your place in Manupoti. Her aunt who is married to your wife’s brother gave her permission. The victim went with you on the way you took her into the bush had her remove her clothing and had sexual intercourse with her. You told her to suck your penis which she did. You then had sexual intercourse with your wife while having the victim stand nearby. That night in the room where you sleep with your wife and children you had the victim sleep with you and your wife. In the night you woke her and your wife and had sexual intercourse with the victim again. After the sexual activity with the victim you had sexual intercourse with your wife. That happened again the following night. The victim complained to her aunt when her aunt next came to Manupoti. You are aged 43.

Principles of Sentencing

3. In imposing sentence, I must take into account the need to hold you accountable for the harm that you have done to the victim 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.
4. 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.

Personal Circumstances

5. You are married with three children and you are the provider for your family working in your gardens.
6. You have no previous convictions.
7. You have had a health issue to do with gout which can be very painful. You have had treatment for your swollen knee.
8. You have already spent 17 months on remand in custody, in Lata and in Honiara.
9. I must acknowledge that any allowance for mitigating factors personal to an offender in cases such as yours must not outweigh the seriousness of your offending. In R v Ligiau and Dori [1986] SBHC 15, a case that is referred to by both counsel as the case that sets the tariff for your offending, the Court said:
   • “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 prosecution has submitted that there are a number of aggravating features:
    1. They refer to the age of the victim. She was only 13 at the time of your offending. The nature of the charge is such that I regard her age as an element of the offence. A victim for a charge under the section for which you have been convicted must necessarily be either 13 or 14. There is however the age disparity. You were around 40 and she was only 13.
    2. You are in the position of an uncle to her because of your marriage. It was because of this relationship that she found herself in your company and in your house and you took advantage of that.
    100. Two of the charges relate to offending at night in your home. The victim was entitled to feel safe there but she was not.
    4. Significantly the offending was repeated not once but twice. That is a matter of considerable aggravation.
    5. A further factor of aggravation is that you involved your wife in your offending causing great hurt to her.
    6. 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 features

11. In addition to the matters set out in your personal circumstances, your counsel submits that you are remorseful. He has said on your behalf that you feel sorry for what you have done and you recognise that you are someone who should look after and take care of the victim. You did not and now you are remorseful. It is hard to reconcile this with your denial of the offending and calling your wife to also deny it. However I record that you now acknowledge your offending and for that you will receive credit.

Starting Point

12. In Ligiau and Dori the Court set out the tariff as:
    • “For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years.”

The Court of Appeal has approved this in Pana v Regina [2013] SBCA 19 where the Court said at paragraph [17]:

“We suggest that, in all but the most exceptional case, 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. 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.”

Comparable cases

13. Counsel has referred to R v Kaneta [2018] SBHC 52 when an offender was sentenced to 6 years imprisonment for offending on a 7 year old child. There are however significant differences between your case including the guilty plea. You chose to proceed to trial so you do not get the credit that would be available for a guilty plea. There are other aggravating factors in your case as I have outlined.
14. Your case is much more like Regina v Boselalu [2020] SBHC 82 when a 36 year old offender who was the uncle of the victim who at night woke his niece, undressed her and had sexual intercourse with her on 3 occasions. One difference was that the offending occurred over a longer period of time.
15. The prosecution has referred to a number of other cases that have significant differences although they are brought under the same section. Yours was not one where you were in a boy/girl relationship with your victim. I must in the sentencing place weight on the offending in your house with your own children present.

Application of the principles

16. I do not consider yours as an exceptional case meriting a starting point any less than as set out by the Court of Appeal in Pana. For Count 1, I therefore take a starting point of 8 years’ imprisonment. For counts 2 and 3 I increase that starting point because those offences were repeated conduct, they happened in your home where she was sleeping, they happened at night. Instead of her being able to seek help from your wife you involved her in the offending. To reflect those aggravating factors I increase the starting point for counts 2 and 3 to 10 years’ imprisonment. For count 1, I reduce the sentence to take into account that you have previously not come to notice and to reflect that you now acknowledge your offending. I also recognise that the health issues you face will make your sentence of imprisonment more difficult for you than it may be for others. For the matters in mitigation and for your personal factors I reduce the sentence to 6 years imprisonment on count 1.
17. The reduction for count 1 is two years less than the starting point. I make the same deduction for both count 2 and for count 3 to allow for mitigating factors and your personal circumstances. The sentence on each of those counts is 8 years’ imprisonment.

Concurrent/Consecutive sentences

18. You have been found guilty of three charges. You offended against the one victim pleaded to a second offence within a short period of time.
19. 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.”

20. 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.
21. In my view the three sexual assaults for which you appear for sentence should properly be regarded as part of the one transaction. The sentences for counts 2 and 3 will be concurrent with the sentence for count 1. I have considered whether there needs to be an increase to reflect the totality of your offending. I have come to the conclusion that the sentence for count 2 and count 3 is adequate in all the circumstances.
22. I have noted that you have already spend 17 months on remand. I direct the authorities to take that into account when calculating your release date.

Orders of the Court

1. On count 1 the Defendant is convicted and sentenced to 6 years’ imprisonment.
2. On count 2 the Defendant is convicted and sentenced to 8 years’ imprisonment.
3. On count 3 the Defendant is convicted and sentenced to 8 years’ imprisonment.
4. The sentence on count 1 and 2 are concurrent with the sentence on count
5. In fixing your release date, the authorities are directed to take into account the time you have already spent on remand in custody.
6. The name and any identification of the victim are permanently suppressed.

By the Court
Justice Howard Lawry PJ