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R v Wickham [2022] SBHC 74; HCSI-CRC 370 of 2021 (7 October 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 370 of 2021

REX

V

ROY ZIO WICKHAM

Date of Hearing: 4 and 5 October 2022 (Gizo Court Circuit, October 2022)
Date of Decision: 7 October 2022

Mr Meioko A for the Crown
Mr Max H for the Defendant

Keniapisia; PJ

CONVICTION AND SENTENCE

1. Defendant is a native of Kenelo Village, Rendova Island, Western Province. He was charged with 9 counts of persistent sexual abuse contrary to Section 142 (2) and Section 139 of the Penal Code (Amendment) (Sexual Offences) Act 2016 (No. 3 of 2016).
   • Section 139 (1) (a) and (b) relevantly stated: -
   • “a person commits an offence, if the person has sexual intercourse with a child who is under 15 years of age.
   • Maximum penalty:
     • (a) If the child is under 13 years of age or the offender is a person in a position of trust in relation to the child - life imprisonment; or
     • (b) If the child is between 13 and 15 years of age – 15 years imprisonment.” (My underlining)
2. Section 142 (2) relevantly stated: -
   • “a person commits an offence, if the person engages in an act in relation to a particular child that constitutes a sexual offence on 3 or more separate occasions occurring on separate days during any period”.
   • Maximum penalty: Life imprisonment.
   • It must be noted that sexual offence in here means an offence against Section 139 – Section 142 (1).
3. On the day trial commenced, 4^th October 2022, 8:30am, Court arraigned Mr Wickham of 9 charges of persistent sexual abuse. He denied all 9 charges. Crown called its first witness, the victim. Crown completed its examination in chief. And the victim was subjected to cross examination by the defence counsel and possibly the Court.
4. Crown led evidence via the victim and managed to establish evidence in support of 5 instances/charges only. Mr Wickham was however initially charged with 9 instances/charges of persistent sexual abuse. Instead of cross examination, defence counsel requested an adjournment to 1:30pm, because his client wants to speak to him. Court resumed at 1:30pm. Defence counsel informed the Court, that his client wants to change his plea. Defendant now wants to plead guilty to the 5 charges, Crown led evidence on in the morning and not the 9 charges initially laid against him.
5. Court adjourned to 4:30 pm to allow Crown to attend to the change of circumstances of the trial. Crown had (i) Amended Information to concentrate on 5 charges only and to enter (ii) Nolle Prosequi in respect of the remaining 4 charges, that Crown was unable to produce evidence in support of from the victim. At 4:30 pm, Court arraigned Mr Wickham the second time on 5 charges only, as per the Amended Information. He pleaded guilty to all 5 charges. Four charges were dropped. So, Court adjourned to 1:30 pm on 5/10/2022, for sentencing submissions. The agreed facts for the 5 charges show the following:
   • (i) The complainant is Talia Wickham and she was born on 24^th September 2005. She was 13 years old in 2018 and 14 years old in 2019.
   • (ii) The defendant is Roy Zio Wickham and he was 51 years old at the time of the offending.
   • (iii) The complainant is the defendant’s niece. The complainant’s father and the defendant are brothers.
   • (iv) On an unknown date, between 1^st July 2018 and 31^st July 2018, the defendant came back from work at lunch time and told the complainant that her father wanted to speak with her. She spoke with her father on the phone and was about to leave the defendant’s house when he asked if he could have sexual intercourse. The complainant did not say anything to him and she was afraid because he was her uncle. The defendant then reached into her trousers and told her to remove her trousers but she did not do it. He then told her to lay on top of a table that was inside the house. He then removed her trousers and his own trousers. He then took his penis and pushed it into the complainant’s vagina and had sexual intercourse with her until he ejaculated. After having sexual intercourse with her, the complainant left the house and went back to her granny’s house. She did not tell anyone about what the defendant did to her because she was afraid of him.
   • (v) On an unknown date between 1^st August 2018 and 31^st August 2018, the complainant was at the defendant’s house. The defendant asked the complainant for them to have sexual intercourse but she did not say anything to him. The defendant held inside the complainant’s shirt and trousers. He laid the victim down on the floor of the living room and took off her trousers. He then removed his trousers and pushed his penis into the complainant’s vagina. He then had sexual intercourse with her until he ejaculated. After that, he wore his trousers and left the complainant. She then went back to her granny’s house but did not tell anyone about what had happened because the defendant told her that he was teaching her.
   • (vi) On an unknown date, between 1^st September 2018 and 30^th September 2018, the complainant was at the defendant’s house inside the living room. The defendant approached her and asked for them to have sexual intercourse. He laid the complainant on a table inside the living room and took her trousers and pulled down his own trousers. He then pushed his penis into her vagina and had sexual intercourse with her until he ejaculated. After he had sexual intercourse with her, he then went back to work. The complainant wore her trousers and went back to her granny’s house. She did not tell anyone about what happened because the defendant told her not to tell anyone.
   • (vii) On an unknown date between 1^st November 2018 and 30^th November 2018, the defendant returned to his house after going for fishing. At the house, he called out to her daughter and the complainant to come and help him. But her daughter was already asleep so the complainant came out to help him with the oven “motu”. The defendant asked the complainant for them to have sexual intercourse but she did not say anything, he then kissed her and pushed his hand into her shirt. He then told her to remove her trousers but she refused because he was her uncle. He told the complainant to lay down on the kitchen floor and he removed her clothes. He then took out his penis and pushed it into the complainant’s vagina. He then had sexual intercourse with her until he ejaculated.
   • (viii) On an unknown date between 1^st January 2019 and 31^st January 2019, at the morning of this day, the complainant and the defendant’s daughter were sleeping inside their room. The defendant’s daughter woke up and left the room. The complainant was still sleeping when the defendant went into the room. It was inside the room that he asked the complainant to have sexual intercourse but she did not say anything to him. He then removed her trousers and his own trousers. After that, he then pushed his penis into the victim’s vagina and had sexual intercourse with her until he ejaculated. He then got up and went out of the room.
   • (ix) The matter was reported to the Munda police and the defendant was arrested.
6. Defence conceded that with this kind of offence, there is no question that the defendant must receive custodial sentence. The only question is the length of the custodial sentence. I am grateful to counsel for submissions and case precedents supplied. There are many authorities given. However, I want to use 2 cases only as guidelines to assist me to arrive at the appropriate term for the custodial sentence. I have read all the cases and I am persuaded to use the guidelines set out in 2 cases namely Pana (Court of Appeal 2013) and Gwali (High Court 2021). These 2 cases in my view are more responsive to the legislative reform that took place in 2016, whereby sexual offences against children in the Penal Code Act (Cap 26) have been removed from mere/general crimes to special crimes of child sexual offences needing the attention of everybody.
7. The 2016 amendment was made in response to the prevalence of sexual abuses against female children by people, who are in some form of relationship with the female children. Pana case was prior in time (2013) but relied on a nation-wide survey report, that the Solomon Islands Law Reform published referring to the “alarming level of sexual violence and the recommendation for creation of new sexual offences and increase in penalty for others”. The report noted that in comparison to our nearest neighbours in the Pacific Islands, sentences for sexual offences in Solomon Islands are low. The report eventually resulted in the child sexually focused reforms that took place in 2016, where the Penal Code was amended – Penal Code (Amendment) (Sexual Offences) Act (No. 3 of 2016). Parliament was addressing a prevalent issue of sexual offences against young children (mostly female) in this country. Hence Parliament remove sexual offences from being mere general crimes under the Penal Code Act (Cap 26).
8. Parliament in my respectful view was saying in 2016, that us, the whole of society and more particularly the protectors of young children, inclusive of the Courts, being the custodian of the law, we must be vigilant to the new alarming societal issue of sexual offences against young children. As for the Courts, our vigilance is measured in the sentencing deterrence messages we put out through the sentences that are imposed on culprits. Courts must impose higher custodial sentence terms. I picked on the 2 cases above mentioned because they both alert the Courts to be more vigilant in addressing the new prevalent sexual offences against young female children, by imposing higher custodial sentences. The new aspect of these kind of crimes is that young female children (under 15 years) are widely becoming victims of sexually abusive offences committed by their very close family members rather than strangers.
9. Parliament was concerned about the seriousness of this kind of sexual offences (commonly against young female children), reflected in enacting a maximum sentence of life imprisonment. Carrying on from the same concern, the Courts have now made it clear that there must be a custodial sentence for these kinds of offences. Defence conceded in closing submissions. It is a matter of the length of custodial sentence that I must decide in the circumstances. The 2 cases I accepted as persuasive also say there must be higher sentences, putting the starting point at 8 years, without the aggravating and mitigating features, in uncontested cases/trials. This is an uncontested trial. There are aggregating features in this matter. So, I will move the starting point to 10 years, as in Gwali.
10. The aggravating features in this case are – age of victim (young), age disparity between victim and accused, breach of position of trust and repetition of the offending.

Age of the victim – young female.

11. The victim was 13/14 years old at the time of offending in 2018/2019, as agreed by counsel. The victim was a very young girl. The law of the country disapproves sexual intercourse with a child below the age of 15 years and considers it as a very serious offence, reflected by the maximum penalty of life imprisonment, that can be imposed. That sets aside this type of offence from other sexual offences. And the Court likewise has a duty to also come alongside to impose custodial sentences that will send out a clear message of deterrence to the public. That clear deterrence message, to me, is a higher sentence, not low sentences, like what we are known for in the Pacific Islands. So, any sexual offending against a child below 15, is expected to be imprisonable and lengthy, depending on the presence of aggravating and mitigating facts of each case.
12. The victim’s young age, is a serious aggravating feature. The sacredness and virginity of the young female child has been destroyed. Those human virtues of a young female child are highly treasured, by every father of a young female child. Those treasures in some primitive Melanesian cultures will result in death punishment of the accused by the victim’s family. At present in some Melanesian societies like in Malaita hefty compensation or even assault will be imposed on the accused by the family of the victim. The protected personality and dignity of the young female child (victim) has been murdered, the impact of which is permanent. The impact will continue to permanently haunt the young victim’s conscience into her adult life and later years. We all have a duty to protect those treasures of the young female child.

Age disparity of the victim and accused.

13. Age disparity is another aggravating feature. At time of offending in 2018/2019, the victim was 13/14 years old. The accused, her uncle was 51 years old at time of offending, a big age difference of around 37 years. I will refer to accused as victim’s father in Solomon Islands cultural context. To distinguish victim’s biological father, I will use the term “accused father” for the defendant. Agreed facts show that accused is the brother of victim’s father. The accused father is mature, ought to be responsible and should be caring towards his own daughter/family member. Those fatherly duties have been neglected by the sexual gratification of the accused father.

Breach of Position of Trust.

14. The accused is the father of the victim, in custom. This is the third and equally aggravating feature in this case. The victim was absent from her biological father visiting her granny at Kenelo Village, where her accused father had a home and was residing. In the absence of the biological father and away from home, the accused is the father of the victim in terms of care, love and affection (the dignified love and affection a father should have for his child/daughter). The accused father’s home is the victim’s home in custom. It is the next place the victim should rightly claim as her home. The victim is to rightly expect in custom that the accused father’s house is the place of sanctuary and safety for her. She should feel safety, security and her well-being secured in the house of her accused father. The opposite is what the victim experienced. Her accused father sexually abused and had sexual intercourse with her at her accused father’s home, on the table (twice), on the floor of the living room (twice) and in the kitchen (once). The accused father should be providing food for the victim on the table. The accused father should be providing a bed for the victim to have a sleep in the living room. Instead the accused father abused and had sexual intercourse with the victim in those places. This is indeed a shameful disregard to the accused’s fatherly duties, naturally and culturally placed on the accused father towards his daughter victim.

Repetitive offending

15. The fourth aggravating feature is the repetition in the offending. Agreed facts shows the accused father had sexual intercourse with the complainant on 5 different occasions in the house of the accused father. There were 5 circumstances of sexual abuse/sexual intercourse put together under this one charge of persistent sexual abuse offence. The accused father used his position of trust to sexually have intercourse with the child. The child was coming in good faith to her accused father’s home. On the 1^st instance the child was coming to use her accused father’s mobile to speak with her biological father. On another instance, she was sleeping with her cousin sister. Another time she woke up at night to help out with oven (motu) fish, after her accused father, had returned from a fishing trip.
16. Taking all of these aggravating features, I add another 3 years, bringing the total to 13 years, as in Gwali.
17. On the other hand, there are also mitigating factors in this case that I need to consider to affect the ultimate length of sentence to be imposed. There are 4 mitigating features.

Guilty Plea

18. The guilty plea here is not a genuine early guilty plea. Guilty plea was made at the commencement of trial, whereby the victim was already put through the trauma of having to recite the story of the unfortunate things that happened to her. Trial was cut short, but expenses had already been incurred, in having a Court circuit to Gizo for this trial. But the significance of the change of heart shows that defendant was sorry and remorseful for his unacceptable actions towards his brother’s daughter. I will deduct 2 years and 3 months for this, unlike in Gwali, where there was 3 years and 3 months deduction for a genuine early guilty plea and a victim of 12 years.

First offender.

19. I also take into account the accused is a first-time offender. I deduct 2 years for this, like in Gwali.

Personal matters.

20. Personal matters made in submission on behalf of the accused are – main bread winner, second wife pregnant, child attending Tabaka Rural Training Centre, church man and reconciliation. I allow 1 year for these. These are personal matters that are significant, but may only carry less impact, than they might otherwise do (Gwali). In any event I allow 1-year deduction.

Time spent in custody and delay.

21. Defendant only spent about 3 months in custody and was released on bail. There is about 2 year’s delay, since committing the matter to the High Court. But then I noted that 2 years, this country had suffered from Covid -19 crisis. I allow 1-year deduction for delay nevertheless. Time spend in custody to be accounted for by the Correctional Service Authority.
22. From the total 13 years, I deduct a total of 6 years. I sentence accused to 7 years.
23. Accordingly orders of the Court are: -
    • 23.1 Enter conviction for the offence of persistent sexual abuse, of a child under 15 years contrary to Section 139 and Section 142 (2) of the Penal Code (Amendment) (Sexual Offences) Act 2016 (No 3 of 2016).
    • 23.2 Impose custodial sentence of 7 years and time in custody to be further deducted.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE