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R v Suiga [2024] SBHC 130; HCSI-CRC 426 of 2023 (22 May 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 426 of 2024

REX

V

ROBINSON SUIGA

Date of Hearing: 17 May 2024
Date of Sentence: 22 May 2024

Mr A Kelesi & S Vaike for the Crown
Mr A Tinoni for the Defendant

SENTENCE

FAUKONA, DCJ.
Introductory:

1. The defendant was originally charged for three counts of persistent sexual abuse of a child contrary to section 142(2) of the Penal Code as amended by (Amendment) (Sexual Offence) Act 2016 as read with section 136F (1) (a) and (b) of the same amendment.
2. The first count consists of six (6) incidences of which the defendant sexually abused Miss Mary Sele on different dates and occasions. On the first two occasions, he pushed his fingers into the vagina of the victim without her consent. The victim was 16 years old at those two occasions.
3. On the third to sixth occasion, the defendant persistently sexually abused the same victim on separate occasions and dates by actually having sexual intercourse with Mary Sele by pushing his penis into her vagina without her consent.
4. On the 3^rd to the 5^th Occasion the victim was 17 years old, and on the 6^th occasion she was 18 years old.
5. The second count consist of two incidences of persistent sexual abuse of a child contrary to section 142 (2) of the Penal Code (Amendment) (Sexual Offences) Act 2016 as read with section 139 (1) (b) of the amended Penal Code (Amendment) (Sexual Offences) Act 2016.
6. The two incidents concern with Ms. Serah Sele, the victim of 13 years and 9 months, and 14 years at the time of offending. On both occasions, the defendant had sexual intercourse with the victim by putting his penis into her vagina without her consent.
7. The third count is persistent sexual abuse of child contrary to section 142 (2) of Penal Code as amended by (Amendment)(Sexual Offences) Act 2016 and as read together with section 139 (2) (a) of the Penal Code of same amendment Act 2016.
8. Under count three, there were two incidents occurred on a separate date but with similar nature of offences. That the defendant committed an indecent act on Joana Sele. On those two occasions by touching her breast without her consent. At that time of offending she was 12 years of age.
9. These three counts and incidents were read to the defendant and he enters a plea of guilty to all of them.
10. Before I proceed to frame the facts as agreed upon, it is pertinent to deal with count 2 and 3 in align with section 142 (2).
11. Upon reading of section 142 (2) which actually states, “ A person commits an offence if the person engage 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”.
12. Upon thoroughly reading this particular law and its application and interpretation, and having considered if there is any effect it would have on the entire provision, I can able to conclude that an offence of any sexual nature will constitute a crime under section 142 (2) of persistent sexual abuse, if it occurs on 3 or more occasions on separate days for any period.
13. Originally, the defendant was charged under the same provision for 3 counts. Count 1 consist of 9 incidents, whilst count 2 consist of 4 incidents and count 3 consist of 4 incidents.
14. On 17^th May 2024 a nolle prosequi was filed nollying incidents 3, 4, and 9 of the first count, and incidents 3 and 4 of the second count and lastly incidents 2 and 4 of count 3. Those nullification was reflected in the amended information filed on 17^th May 2024.
15. After such nollying, count 1 left with 6 incidents, count 2 left with 2 incidents and count 3 left with 2 incidents.
16. After filing and activating the nolle prosequi, that I perceive the crown has not realized that count 2 and 3 has left with 2 incidents each. Those 2 incidents in both counts, in my opinion fall short of the number of occasions required under section 142 (2), that 3 or more occasions before such actions will constitute the crime of persistent sexual abuse of a child.
17. It is therefore my respectable view that count 2 and 3 fall short to be qualified to constitute an offence of persistent sexual abuse of child under section 142 (2). That shortcoming must render and call for exercise of my jurisdiction to do justice by dismissing the information and acquitting the defendant from count 2 and 3. I regret that the defendant has entered a plea of guilty to both counts, nevertheless justice must be done and seen to be done, and is definitely done in this case. I will only draw a sentence that will legally match the offending and the circumstances surrounding committal of count 1.

Agreed facts of the case.

18. The defendant Mr. Robinson Suiga, is the first cousin of the complainant. It may seem the defendant is adopted into the family of the complainant.
19. At the time of offending Ms Mary Sele was around 16 years old when the first offence occurred. The offence occurred on different occasions and locations. At that time of offending the defendant was a member of Church of Melanesian Brotherhood commonly known as “Tasiu” and the victim was a student doing form 3.
20. The first incident occurred on an unknown date between 1^st December and 31^st December 2020, along the road to Foskay passage when returning home after seeing some relatives at the Soltuna wharf bound for Temotu Province. Upon their return to the village, along the road, the defendant inserted his fingers into the vagina of the complainant whilst masturbating himself.
21. The second incident occurred within the same period between 1^st December and 31^st December 2020. This time it happened at Falog Village, where the defendant entered the complainant’s room and forced her to have sex with him by inserting his fingers into her vagina.
22. The third incident occurred on an unknown date between 1^st January 2021 and 31^st December 2021, at Falog Village, inside the defendant’s canteen, at daytime, when he had sexual intercourse with her. The defendant in fact asked the complainant to look after his canteen and accorded that opportunity to have sexual intercourse with her.
23. The fourth incident within the same period, on an unknown date between 1^st January 2021 and 31^st December 2021, at Noro, inside Yvonne’s house opposite the Copsland (RSIPF housing quarters), at night, the defendant entered the complainant’s room and had sexual intercourse with her.
24. On the fifth incident, but still within the same period, on an unknown date between 1^st January 2021 and 31^st December 2021, when the defendant went to Noro Community High School and asked the complainant to follow him to Munda. At Munda along the road at the seaside, at a nearby bush, he had sexual intercourse with the complainant.
25. On the sixth occasion on an unknown date between 1^st January 2021 and 31^st December 2021 at Noro, at a junction opposite Mr Tausinga’s, the defendant pushed the complainant into a nearby bush and had sexual intercourse with her.
26. On each occasion the victim did not consent to the sexual abuses. During incident one and two the victim was 16 years old. For incidents 3 – 5 the victim was 17 years old and the sixth incident occurred when she was 18 years old.
27. At those incidents, the complainant submits to the defendant’s action because of his status, fear and respect. Not at any one incident, she consented to.

Starting Point.

28. The Court of Appeal in Bara v Reginam^[1] sets out the appropriate guidance, where available the sentence Judge should identify a starting point.
29. In the nutshell, following the sentencing structure outline by the above case, a published sentence remarks should include, inter alia, the identified starting point, aggravating features, mitigating features, account taken of the plea, application of totality principle and a discussion of credit for the pre-sentence custody and sentencing in general.
30. Before I consider which is the appropriate starting point in this case, may I remind parties that I have dismissed count 2 and 3 and have the defendant acquitted from those two counts, premise on technical points of law. Secondly the maximum penalty for the offence of persistent sexual abuse of a child under section 142 (2) of the amended Penal Code 2016, is life imprisonment. It is also the same maximum penalty for rape contrary to section 136F (1) (a) and (b) of Penal Code (Amendment) (Sexual Offences) Act 2016.
31. The common authorities now applied in determining a starting point commences with the case of R v Sinatau^[2] which the Court of Appeal stated that the starting point for rape is 8 years; and for an uncontested rape is 6 years. This starting point was considered in the initial decision of Bade v R^[3] which involved an adult complainant.
32. The cases of R v Sinatau^[4] and Pana v R^[5] concern starting point for rape in respect of victims who are below the age of consent, the starting point in non-contested matter is 8 years.
33. In the current case the counsel for defence made reference to the case of R v Roy Zio Wickham^[6] who was charged for 9 counts of persistent abuse of a child under 15 years. The starting point in that case is 10 years. The counsel felt the 10 years starting point is out of context.
34. However, the Counsel also agrees the starting point in Para v R is 8 years for a child below the consenting age.
35. It may appear the counsel for the defence seems to favour the starting point in R v Gwali which is 10 years as he quotes. I have to sway away from that as being not sanctioned by the latest case authorities.
36. Having considered the variables submissions about starting point, I decide the proper starting point considering the age of the victim in this case is 6 years.

Aggravating Features.
Age of the victim.

37. In this case, the age of the victim at the first occasion was 16 years old and progressed through the next two years on five other occasions when the victim was 17 years and the final occasion when she was 18 years old. Her age in fact is not below the consenting age, but above.
38. Age disparity is 9 years. Although the age difference has a small gap a 16- and 17-years old girl is a “child” as define in section 4 of the Penal Code (Amendment) (Sexual Offences) Act 2016, a person under 18 years of age.
39. Like the Court said in Para case, the actual age may be considered as an additional factor. Its aggravating effect on the sentence will usually be greater the younger the child, I consider this feature as significant aggravation in this case.

Breach of Trust.

40. The defendant is the complainant’s first cousin. In Solomon Islands culture and custom is wrong for cousins to engage in immoral activities as having sexual intercourse. A big cousin brother is often depending on for security and protection in times of trouble.
41. The victim in this case fell a prey to her cousin brother’s urges to satisfy himself at the expense of her and her dignity and future. The consequence can be long lasting through ongoing shame, fear and insecurity. And that could have been a commotion within the community. The defendant can be regarded as someone unworthy to be trusted. The complainant submits to his demand out of respect and fear of the defendant as a “Tasiu” a work man of a special Christian group in the Anglican Church.

Psychological and emotional effect.

42. There is no doubt that the offences had caused psychological effect and emotion upon the victim and her family. In any event, I have taken Judicial notice of any devastating effect on the victim and the level of harm that create issues for the complainant is well documented, although there has been no evidence that the victim suffers severe psychological harm.

Repeated commission of the offence.

43. The defendant committed the offence on the victim six times over the period of three years. Sexual intercourse started when she was 16 years old until she was 18 years old.
44. It would seem during the whole of the day the defendant was fantasising about his cousin sister. He ensures there was space, if not he would create to give him privilege to capitalize on to sexually abuse the victim. At one stage, he called her out of school and both went to Munda where he had sexual intercourse with her in the bush near the sea.
45. It becomes a reality now that the defendant is becoming dangerous within his own family. He can devour anyone when the chance strike. His appetite is for sexual gratification and nothing else.
46. The manner in which he accounted for his desire to disown any girl is on a very high rate. This must be ceased somehow or he would continue to sexually abuse any girl of any age. The defendant is danger to the community.

Subsequent pregnancy.

47. The victim was consequently got pregnant by the defendant and gave birth to a baby girl. The baby is currently with the victim. In the case of Nanai v R^[7], Kabui (J) stated, “The fact that your daughter had become pregnant and gave birth to a still born child is an aggravating factor against you. It did not matter that your daughter hid her pregnancy from you until delivery of the child. You were responsible for her pregnancy and you bear it”.
48. The grave desire for sexual abuse of his cousin sister now materialized in a child being born. It is an additional aggravation and an additional responsibility. Would the defendant able to relief the situation from the victim? There is nothing he can do.
49. Such a state of affair can hinder the victim from completing her education and also pile a lot of responsibility caring for the child, providing and ensuring the basic needs of the child is met. The aggravation now reached the peak of it.

A member of a Special Christian Group.

50. At the time of offending the defendant was a member of the Church of Melanesian brotherhood commonly known as “Tasiu”. A sacred church group that are instrumental in showing the Christian way of life. The defendant had breached his religious vows brought dis-repute upon himself and the group he served.
51. No doubt, the defendant must have been shown his marching orders for the sexual abusive behaviour. His actions brought shame on himself and his family. Worst still when the community around shy away from his family and condemned for such behaviour.
52. The evil action manifested by the defendant hold him responsible for what he had done. It is him to be blamed for the anxiety and shame his family had gone through. After all, the sharp arms of the law is catching on him, he should be able to reshape his life and destiny, thereafter.

Pre-plan activities.

53. The defendant picked the time when the complainant was alone and committed the offences. At one occasion he had to call the victim out of school so that he would have sex with her. The defendant at that time had strong desires to have sex within his own family member because it would be difficult to pick from outside. That’s aggravation at its best. He in fact planned what to do each day and perhaps monitor his cousin sister. Any privilege strike he would capitalise on to fulfil his sexual ego. He seemed to be very observant and alert at all times for any chance. This shows the level of his evilness and the status of his desire for sexual abuse. Above all his desire entrap him to the repeat the offence six times a serious aggravating factor.
54. Having noted these aggravating features, which reveal the circumstances surrounding the offending, are serious and require immediate custodial sentence, which must mark the gravity of offending.
55. The repetition of having sexual abuse with a cousin sister, with eventual causing her pregnancy is serious. Evidence revealed she submitted herself to the defendant because of respect to the defendant who was a “Tasiu” at that time.
56. With all those aggravating factors narrated against the defendant, this court must accelerate the starting point of six (6) years to a sentence of 12 years.

Mitigating features.

57. What are the facts that can be said on behalf of the defendant to mitigate his case? I noted he has pleaded guilty to all the incidences in count 1 at first opportunity. I give him credit for taking that very important step.
58. By entering a plea of guilty avoids what should have been a long trial with time wastage and resources. At the same time avoids the complainant from being call into the witness box under a stressful situation to reveal an ordeal which she now attempted to forego and get it off her mind. I therefore give credit for the defendant on his plea of guilty.
59. I noted the victim suffered no physical injuries because no act of violence put to her risk, though there is some evidence of force to the extent was on very low magnitude.
60. Coming from that backdrop, it would be otherwise minimal in causing any psychological or trauma upon the victim. Any psychological effect does not emerge from physical suffering alone, that may be less proportionate, but the bulk of it was caused by the sexual abuse within the family, a tabu, which often spread throughout the community, bringing shame, anxiety and stigma to the victim and the family. In any event, the authority of R v Bonuga^[8] has urged me to take judicial notice of which I do.
61. It is also noted the defendant is a first-time offender. He has not confronted law previously and has a past good record without previous conviction. I give him credit for that.
62. The defendant also co-operates with police during investigations. Initially he was bailed but he forgot to attend court on a mention date, so he was arrested and placed in custody until today. There is no evidence available as to the number of months spent in custody but this court practically always deduct number of days spent in pre-trial custody. I will apply the same in this case. Above all credit goes to the defendant for his co-operation during investigation shows he begin to realize his mistakes and begin to adhere to the laws of this country.
63. Credit should also be given to the defendant for expressing his remorse through his lawyer for what he has done to the victim and her family. If compensation have been paid before passing this sentence, it would be more effective as a strong mitigating feature. However, the defendant if he thinks relevant can arrange for later date.

Good candidate for rehabilitation.

64. From the background of the defendant, he may be a good candidate for rehabilitation. I noted he owns a retail shop in his community. And perhaps he is more serious than ever to expand his entrepreneurship to another level. Meantime, it is the same shop that he used to entrap and sexually abused the victim inside. I hope it is not a venue for future criminal activities.
65. I noted all humans can change behaviour at one stage in time. But how exact are we to perceive a future of a person. The law strikes its rod on what proved to be wrong today, tomorrow as at stake. The punitive arm of the law must be first realised before any rehabilitation.
66. Although the defendant is a good candidate for rehabilitation, the fact that his action of committing multiple sexual abuse to a victim, seem to represent him as a risk to the society. And this can’t be allowed.

Delay.

67. There is no evidence of unreasonable delay in this case. The offending occurred over the period of three years from 2020 to 2022. The end of the last period when the defendant abused the victim from 1^st January to 31^st July 2022. If there should be any delay to account for, it must be after 31^st July 2022. From 31^st July 2022 to today is less than two years. Hence, where is the unreasonable delay? Noting section 10 (1) of the constitution was never breached.
68. Two years delay before hearing and sentence is normal delay. It is an administrative delay and not justice delay justice denied.

Personal circumstances.

69. Whether the defendant is a breadwinner to the family, the worst ever is he dismantle the family unit instead of providing he destroys, isn’t that any logic at all? The defendant’s personal circumstances are not convincing and often has less weight and not normally considered. The primary reason is that if it is to be a prevalent consideration expected, the defendant should have considered his personal circumstances before he tips his fingers to committing a crime. To bring those circumstances now is obviously late, a crime had been committed.
70. Upon considering the mitigating features in totality, I incline to deduct 2 years, leaving the head sentence at 10 years.
71. This sentence reflects a paint mark on the gravity of the offence, it emphasizes the public disapproval. The sentence is also to serve as warning to others and to punish the offender. Lastly to protect women and give them liberty to move around without fear.
72. Like in almost every criminal case, a deterrent sentence will deter the defendant to learn and not to repeat the same mistake again. In general, deterrence sends a message to the public at large and communities that anyone intended to sexually abuse girls is expected to be dealt with by the long arms of law seriously.
73. Data collected has reveal that sexual immorality cases in Solomon Islands is on the rise, and courts are prepared to quell the trend with its justice system in dealing with crime. The approach would be serious to uphold the prevalence of law and give liberty to women and girls to move around freely without fear and looking over their shoulders each time.
74. I therefore impose a final sentence for the defendant to serve 10 years in prison.

Orders:

1. The defendant has been convicted on his own plea of guilty.
2. The defendant has to serve 10 years in prison.
3. Any period of pre-trial custody be deducted from this sentence.

THE COURT.
Hon. Rex Faukona
DEPUTY CHIEF JUSTICE.

^[1] [2018] SBCA 10, SICOA – CRAC 36 of 2017 (11 May 2018).
^[2] [2023] SBCA 38; SICOA – CRAC 9027 of 2023 (13 October 2023)
^[3] [2023] SBCA 39; SICOA – CRAC 9017 of 2023 (13 October 2023)
^[4] Ibid 2
^[5] CRAC 13 of 2013 (8 November 2013).6. [2022] SBHC 74.
^[6] [2022] SBHC 74.
^[7] [2005] SBHC 74; HCSI-CRAC 324 of 2004 (21 June 2005)
^[8] [2014] SBCA 19