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R v Lafari [2023] SBHC 56; HCSI-CRC 59 of 2023 (28 July 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 59 of 2023

REX

V

JUSTIN LAFARI

Date if Hearing: 14 July 2023
Date of Sentence: 28 July 2023

Ms Olutimayin (DPP) for the Crown
Mr Limeniala for the Defendant

Keniapisia; PJ

SENTENCE

Introduction

1. Mr Justin Lafari is the defendant. He is charged with persistent sexual abuse of a child contrary to Section 142 (2) and Section 139 (1) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual offences) Act 2016 - hereafter called the “2016 Act”. The particulars of offence contained in the further amended information (filed 13/07/2023) give some brief details of the four different times in March 2022, that the defendant had sexual intercourse (penetration) with the child/teenage complainant, Miss Selbie Tefoabata (“ST”) who at that time was 13 years and 2 months.

Defendant pleaded guilty on arraignment premised on summary of facts

2. Court arraigned the defendant on 14/7/2023. Simultaneously the DPP read out the summary of facts. Defendant pleaded guilty to the two charges premised on summary of facts settled between Counsel. Court convicted the defendant straight after arraignment. In this judgment I have to determine the appropriate sentence or punishment. The summary of facts is adopted in full as follows: -
   • 2.1 The defendant Justin Lafari of Bona village, West Kwaio is charged with persistent sexual abuse of a child contrary to Section 142 (2) of the Penal Code Act (Cap 26) as amended in 2016. The offending is particularised as four instances of sexual intercourse with a child under the age of 15 years, contrary to Section 139 (1) (b) of the Penal Code Act as amended in 2016.
   • 2.2 The defendant is 50 years of age.
   • 2.3 The defendant resides in the same village as the complainant in Bona village, West Kwaio, Malaita Province.
   • 2.4 The complainant ST was born on 2^nd July 2008. She was 13 years old and 2 months at the time of the offending. She was a student in Baunani Primary School.
   • 2.5 She, her two sisters and 11 cousins live with her maternal grandparents at Bona village, the elderly couple look after all of them.
   • 2.6 Her grandparents struggled to feed all the children they look after. They could afford to feed them twice daily. The children went without lunch and were always hungry at lunchtime.
   • 2.7 The house where the complainant live did not have water. They got water from a water source along the main road close to the defendant’s store.
   • 2.8 Four instances of sexual offending occurred between 5^th March and 19^th March 2022, in and around Bona village. All instances of sexual intercourse are penile-vaginal.
   • 2.9 First incident - on 5^th March 2022 at about 6pm to 7pm, the complainant was at her home and she was hungry. She went to the defendant’s canteen for a packet of noodle. When she arrived, she and the defendant were telling stories and the defendant told her that he wanted to have sex with her and if she agreed, he would give her $10.00. The complainant agreed because she wanted help with food and money. She went to the bushes where the defendant directed her to wait. The defendant met her there, undressed her and had sex with her.
   • 2.10 Second incident - on 9^th March 2022 at about 7pm, the complainant went to the main village’s water supply to wash.
   • 2.11 The defendant saw her there and walked over to her. He told her to go and wait for him at his bush toilet.
   • 2.12 The complainant did as she was told. After the defendant had sex with her, they both walked back and he gave her $10.00
   • 2.13 Third incident - on 14^th March 2022 at about 1pm, the complainant went to buy food. When the defendant saw her, he called her into his store and showed her $10.00. He told her she could have the money if she had sex with him.
   • 2.14 The complainant went to a place in the bushes where the defendant told her to wait. He met her there a short time later and had sex with her, then gave her $10.00.
   • 2.15 Fourth incident - on 19^th March 2022, the complainant went to wash at the water main source, when the defendant saw her, he told her to go and wait for him in the bushes so that he could have sex with her.
   • 2.16 The complainant went to a place in the bushes where the defendant told her to wait. He met her there a short time later and had sex with her, then gave her $10.00 as usual.
   • 2.17 Harlyn Meno is the defendant’s daughter in-law, she became suspicious of the complainant and defendant’s movement as they always went and came from the direction of the defendant’s bush toilet where the offending was committed. On a day in June 2022, Harlyn Meno met the complainant’s senior sister – Glenish Efomauri and told her about her suspicion.
   • 2.18 Glenish Efomauri, confronted the complainant with the information Harlyn gave her. The complainant broke down, cried and told her sister what the defendant had been doing to her.
   • 2.19 Glenish reported the matter to their grandparents and the matter became known to all the family.
   • 2.20 Complainant’s cousin named Grey had a disagreement with the defendant’s grandson and openly spoke about the defendant’s behaviour.
   • 2.21 Because of that open disclosure of the defendant’s behaviour, defendant gave shell money to the complainant’s family to compensate for his actions.
   • 2.22 The matter was reported to Police after family members become aware of the offending.
   • 2.23 The complainant was taken to Kilu’ufi’i hospital on 19^th July 2022 and was medically examined by Ms Julie Hitu Hatai. On examination of her external genitalia, the nurse found that there was no hymen. There was greenish discharge from her vagina. The nurse queried sexually transmitted disease and placed her on antibiotic.
   • 2.24 On her mental state, the nurse recorded that she was crying and depressed.
   • 2.25 The defendant participated in a record of interview that was conducted under caution on 1^st September 2022 at Auki correctional centre. The Police asked him to tell his own story. In his answer 24 he stated, “Story blo me osem, long that fala month hem true, but date now mi no remembam for havim sex with. Hem true.”
   • 2.26 He also admitted in several parts of his record of interview that he had sex with the complainant because she comes to ask him for money - between $20.00 to $50.00.

Sexual offending against girls and women prevalent and parliament took decisive legislative reform in the 2016 Act

3. Sexual offending is a serious crime and, in this case, sexual offences under Section 139 (1) of the 2016 Act is a serious crime because it carries a maximum penalty of life imprisonment for sexual abuse of girls under 13 years^[1]. For this offending, the maximum penalty is 15 years because the victim is between 13-15 years^[2]. Charge under Section 142 (2) of the 2016 Act for persistent sexual intercourse, is however, serious, as it carries a maximum penalty of life imprisonment. Parliament had brought about a legislative reform in the 2016 Act to tackle a prevalent issue of sexual abuse of women and girls by men in positions of trust in most cases. Court is duty bound to uphold parliament’s intent to protect women and girls from sexual exploitation, by imposing tougher sentences.

Starting point sentence

4. According to Court of Appeal case of Pana^[3] (2013), the starting point sentence for rape or defilement (equivalent of this persistent sexual abuse) is between 5, 8 and 15 years, depending on the seriousness of each case. In Pana the victim was a toddler and there was transmission of gonorrhoea. Appellant (Pana) was the uncle (in a position of trust) to the toddler victim girl (around 3 years). So, the starting point was 8 years. It was very serious because of the very tender age of the victim (toddler), appellant in a position of trust and transmission of disease to the victim during sexual intercourse.
5. For this case, I will put the starting point sentence at 5 years. The victim is a teenager and not a toddler like in Pana. There is no position of trust though there was transmission of STI decease and the offending was persistent. I think the Court must still recognised the prevalence of this kind of offending that was addressed by parliament in the 2016 Act (offending against girls and women by men and the need to protect girls and women from sexual abuse).

Aggravating features to inflate starting point

6. Then I will inflate the starting point to 10 years because of the presence of 7 serious aggravating factors such as: -
   1. Vulnerability and weak nature of the victim - victim was 13 years and 2 months with vulnerable family background at the material time of offending (repeat 2.5 and 2.6 above). Defendant who is considered wealthy in the village (runs a store) had preyed on the victim’s vulnerability and lured her into having sex with money.
   2. Repetitive offending and pre-planning. Repetition is inherent in the charge of persistent sexual offending and is serious because it carries a maximum penalty of life imprisonment. In this case there were 4 times of offending and is pre-planned because the defendant would look out for the victim at known places (at the water source, at defendant’s store and would lure her into sex with use of money). This is one strong reason why sentence will inflate from 5 to 10 years.
   3. Emotional and physical harm to the victim - this is a factor I must always infer by judicial notice into all sexual offending against teenage female girls/children. In this case, there was physical harm because sexually transmitted STI disease was discovered on the victim by a Kilu’ufi’i nurse and she was given anti-biotics (repeat paragraph 2.23).
   4. Age disparity – victim was only 13 and the defendant 50 years, age gap of about 37 years.

Mitigating features to reduce

7. There are however mitigating factors that will reduce the sentence - like first time offender with no previous criminal record and defendant entered an early guilty plea. In addition, pre-trial custody time will also be accounted for. I will allow 3 years reduction, considering the early guilty plea which has two benefits – saves Court time and saves the victim from the trauma of recounting what happened to her in the witness box. And sentenced the defendant to 7 years imprisonment. I also consider the maximum penalty available for charge under Section 139 (1) (a) of the 2016 Act for sexual intercourse with a girl between 13 - 15 years is not life imprisonment like in Pana. But the charge of persistent sexual offending under Section 142 (2) of the 2016 Act carries a maximum penalty of life imprisonment. I will pass another 7 years sentence for the charge of persistent sexual offending. And have it to run concurrently with the 7 years sentence already determined for sexual offending under Section 139 (1) (a).

Conclusion and Orders

8. Accordingly, Court will sentence the defendant to 7 years imprisonment for each of the 2 counts/charges to be served concurrently. The sentence term of 7 years will start to run from 28^th July 2022.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

^[1] Section 139 (1) (a) of the 2016 Act.
^[2] Section 139 (1) (b) of the 2016 Act.
^[3] Pana v Regina [2013] SICOA 19-CRAC No. 13 of 2013 (8^th November 2013)