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R v Fiuka [2023] SBHC 39; HCSI-CRC 58 of 2023 (25 May 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 58 of 2023

REX

V

JACK FIUKA

Date of Hearing: 23 May 2023
Date of Decision: 25 May 2023

Mr N Tonowane for the Crown
Ms T Aisa for the Accused

SENTENCE

Introduction

1. Jack Fiuka you have pleaded to 2 counts of persistent sexual abuse contrary to section 142(2) of the Penal Code as amended by section 5 of the Penal Code (Amendment)(Sexual Offences) Act 2016. The first count alleges that there were seven occasions in 2021 when you engaged in sexual intercourse with your step daughter when she was 12 years old, each being an offence against section 139 (1)(a) of the Penal Code and each having a maximum penalty of life imprisonment. The Second count to which you have pleaded guilty alleges that on five occasions in 2022 you had sexual intercourse with your stepdaughter when she was 13 years of age each being an offence against section 139(1)(a) of the Penal Code and each having a maximum penalty of life imprisonment. The difference in the two counts is the age of the complainant. In count 1, it is the fact that she was 12 that rendered you liable to life imprisonment. In count 2 when she was 13, it is the fact that you are a person in a position of trust in relation to her that rendered you liable to life imprisonment.

Facts

2. In 2021 you were aged 35 years. You are the stepfather of the Complainant who in 2021 was aged 12. In 2021 there were seven occasions when you were collecting food that you used the bush area to have sexual intercourse with her. It seems that after the first occasion, the complainant co-operated with you. In 2022 there were five occasions when you did the same thing. When she was examined by the doctor she was found to have a vaginal discharge suggesting she had pelvic inflammatory disease which the Court concludes has resulted from your offending. She is said to have suffered permanent physical harm and psychological harm from your offending.

Personal Circumstances

3. You are described as coming from East Kwaio and you are married with two children. You were employed as a contractor at Kolombangara Plantation Limited. You have no previous convictions. You have been remanded in custody since 7 October 2022.

Aggravating Factors

4. There is a gross breach of trust. You were her step father and you destroyed the trust placed in you by the Complainant, by your family and by your community.
5. The age of the Complainant and the fact of the age disparity of 23 years are matters of aggravation.
6. You have caused both physical and psychological harm to the Complainant.
7. Although repetition of the offending is part of the charge, you have offended against the Complainant on 12 separate occasions.

Mitigating Features

8. You have pleaded guilty at the first opportunity in this Court. That has saved the Complainant the trauma of reliving the abuse she suffered. It is an acknowledgement of the harm you have done to her.
9. Your counsel says you are remorseful. I give you some credit for that however you continued to offend over a protracted period.
10. Similarly your counsel says you are a first–time offender. I must balance that against your repeated offending through 2021 and 2022.
11. Your counsel has said you have paid the Complainant’s mother $1,000.00 for reconciliation to restore the family relationship.

Purpose of Sentencing

12. I must hold you accountable for the harm you have done to the Complainant, your family and the community. The Court must send a message to you and those in the community who sexually abuse children. Accordingly the sentence must address both a need for specific deterrence and for general deterrence.

Authorities

13. Before the coming into force of the Penal Code (Amendment)(Sexual Offences) Act 2016 the Court of Appeal in Pana v Regina [2013] SBCA 19 provided guidance to the Court in cases involving sexual offending against children. 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.”
14. It is clear that had you been appearing for sentence on just the first incident identified in Count 1, the sentence before considering mitigating factors could be at least 10 to 11 years’ imprisonment, because of the complainant’s age, the breach of trust, the disparity in ages and the psychological harm that you caused.
15. Counsel have referred to a number of cases including R v Ba’ai CAC 7 of 2022, 28 April 2023 which was an appeal against sentence for a single count of digital penetration of the genitalia of a 12 year old girl. The Court referred to the Crown submission concerning the starting point set out in R v Ligiau and Dori [1986] SBHC 15. That submission was no doubt made relying on the comments by the Court of Appeal in Pana. However the Court in Ba’ai said: “The submission made no allowance for the fact that the five year starting point was in a rape case and this case was significantly less serious.”
16. In Regina v Gwali HCSI –CRC 175 of 2020 the High Court dealt with a guilty plea by a 49 year old offender to a charge of persistent sexual abuse of a 12 year old girl. The Court said the starting point without any aggravating or mitigating features in a non-contested case is eight years. The offender was the stepfather of the complainant. There were three instances of sexual abuse. The Court took a starting point of 13 years. Your case is more serious than that of Gwali.
17. Your counsel also referred to Gwali to assist the Court in identifying an appropriate starting point. In addition your counsel referred to R v Ramaia [2021] SBHC 96 in which the High Court again identified a starting point for a non-contested case as being 8 years’ imprisonment before taking into account the aggravating factors. In that case the offender was aged 21 and the victim aged 14. The offender was sentenced on the basis that the victim was a willing participant. There were three incidents, two involving sexual intercourse. It appears the Court did not increase the starting point beyond 8 years’ imprisonment. The facts of this case are significantly less serious than in yours.
18. Your counsel also referred to R v Romwane [2021] SBHC 74. This case, although it is one of persistent sexual abuse also involved a willing relationship between a 24 year old offender and 13 year old girl. There were four occasions over an eight month period when sexual offending occurred. It is unclear what the starting point was. This case is quite different from yours as you are a 31 year old stepfather who has engaged in sexual abuse over a lengthy period of time with his step daughter when she was 12 and 13, leaving her with both physical and psychological harm.
19. Crown counsel has also referred to R v Kiap HCSI 348 of 2021, 17 March 2023. The offender was found guilty of having sexual intercourse with a 14 year old girl. The offender was aged 65 but was not in the same position of trust as you are. There were four instances of offending against section 139(2) of the Penal Code. Each incident was serious with one in particular being in reality an allegation of rape. The Court took a starting point of 13 years’ imprisonment. Your case is more serious because you are the stepfather of the Complainant and the offending was over a greater period of time and the Complainant was only 12 in the first series of events outlined in Count 1.
20. It is worth noting that in Papua New Guinea the guideline case for such sentencing is Sabiu v The State [2007] PGSC 24. The Supreme Court said at paragraph [10]: “In The State v Biason Benson Samson [2005] N2799 Canings J determined that the starting point in a case involving a 13 year old victim was 15 years imprisonment. We are of the view that the starting point involving a victim under the age of 12 years should be 15 years imprisonment. The circumstances of the case and any aggravating and mitigating factors should be taken into account in determining whether the actual sentence to be imposed in a particular case should be more or less than 15 years imprisonment.” The legislation in Papua New Guinea introduces the maximum penalty of life imprisonment when the victim is under 12 whereas in Solomon Islands it is under 13. In Sabiu the Court was not dealing with a continuing series of offending.
21. In Fiji the Supreme Court in Aitcheson v The State [2018] FJSCA 29, dealt with an appeal from the Court of Appeal for an offender who was a father who sexually abused his two daughters from the time the first turned 6 years old and the offending continued for 8 years. There was additional violence and threats to the mother of the children. The Court noted the disturbing increase in such cases coming before the Court. The Court had earlier dealt with Raj v The State [2014] FJSC 12 which set the tariff for rape of children between eleven and twenty years’ imprisonment.
22. In Aitcheson the Supreme Court took a starting point of 14 years and increased that to 20 years to take into account aggravating factors. The sentence was reduced to take into account the time already spent in custody and the guilty plea leaving a total sentence of 17 years and 9 months. In Fiji as in Papua New Guinea, the Court imposed a minimum sentence before parole. For Aitcheson that was 16 years.
23. In Solomon Islands a prisoner is ordinarily eligible for parole after serving two thirds of his sentence. A sixteen year non-parole period is therefore equivalent to a sentence of twenty four years.

Discussion

24. Applying the principles set out in Pana and recognizing the concerns raised by the Court of Appeal in Ba’ai it is necessary to fix a starting point then make an adjustment to reflect the aggravating factors. From this position an allowance is made for matters in mitigation.
25. As the Complainant’s step father you were in the position of a parent. You were in a position to tell her what to do. Rather than nurture her you abused her over a period of up to two years. Although on the occasions after the first incident the agreed facts tendered to the Court indicate that you asked her for sex and she agreed, there was clearly an imbalance of power. She was after all only 12 years old when you started. You have left her with what the doctor says suggests pelvic inflammatory disease, a painful condition that potentially has a long term effect on her. The doctor has also identified psychological harm. Our Court of Appeal has recognized the long term harm that sexual abuse causes in children. In R v Liva [2017] SBCA 20 the Court of Appeal adopted what it had said in R v Bonuga [2014] SBCA 22. At paragraph [25] the Court said:
    • “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.
    • We confirm that statement and take that factor into account.”
26. Parliament has recognised the harm such offending causes when, in 2016, the maximum penalty for having sexual intercourse with a girl aged between 13 and 15 years without the added aggravation of the offender being in a position of trust, was increased from 5 years to 15 years imprisonment. For count 1, I consider there needs to be a significant increase from a starting point of 8 years’ imprisonment. The age of the complainant, the gross breach of trust, the disparity in your ages, the period over which the offending occurred, the physical harm you have caused and the psychological harm you have caused persuade me that an increase of a further 7 years is warranted. Accordingly the sentence before considering mitigating factors is 15 years’ imprisonment.
27. For Count 2 the same aggravating factors apply with the exception of the breach of trust as that already forms part of the charge. For Count 2, I increase the starting point to 13 years imprisonment before considering mitigating factors.
28. 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 then 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.”

29. 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.

Because the offending was against the same child over up to a two year period I treat the offending as being a single transaction. The sentences are therefore made concurrent.

30. I must however consider the totality of the offending. I consider that 15 years imprisonment before considering mitigating factors otherwise to be imposed on count 1 does not adequately reflect the harm you have done. Therefore the sentence for count 1 is increased by a further year to reflect that totality. That leaves a total sentence of 16 years’ imprisonment for count 1 and 13 years for count 2.

Mitigation

31. You have pleaded guilty at the earliest opportunity in this Court. Your guilty plea together with limited credit for your stated remorse (limited because of your repeated conduct), and making an allowance for the fact that $1000.00 compensation has been paid to the complainant’s mother, (though there is no indication that you have taken any steps to assist the complainant) I reduce the sentence. You are not entitled to credit for being a first offender because after the first occasion in Count 1 you chose to continue to offend. However for all the mitigating factors I reduce the sentence by 2 years and 8 months. You are entitled to 2 years reduction in respect of Count 2.

Orders

1. The Accused is convicted and sentenced to a term of 13 years and 4 months imprisonment for count 1.
2. The Accused is convicted and sentenced to 11 years imprisonment for count 2.
3. The sentence for counts 1 and 2 are to be served concurrently.
4. The sentences are to commence from the date the Accused was taken into custody being 7 October 2022.
5. The name and my identification of the complainant are permanently suppressed.

By the Court

Hon Justice Howard Lawry

Puisne Judge