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R v Tadi [2024] SBHC 189; HCSI-CRC 127 of 2024 (7 March 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 127 of 2024

REX

V

TONISI TADI

Date of Hearing: 23 August 2024 (Written Submission)
Date of Judgment: 7 March 2024

Counsel: Ms Tamaika for the Crown
Counsel: Ms Rusi and Mr Fiuga for the Defendant

VERDICT AND SENTENCE

1. Mr. Tonisi Tadi comes from Buri village, Ranongga, Western Province. Mr Tadi was a school teacher at Barasipo Community High School (BCHS), Parara Island, Vona Vona lagoon, Western Province, in the year 2022.
2. Mr. Tadi was housed at BCHS. Mr. Tadi was the guardian of two male students at BCHS namely Zuzu Ta’ake (ZT) and Rocksley Dulu (RD). The two students reside with Tadi in his house at BCHS, in the year 2022.
3. ZT and RD complains that Mr. Tadi sexually abused them, in his house at BCHS, in the year 2022. Mr. Tadi is charged with two separate counts of persistent sexual intercourse with ZT and RD, contrary to Section 142 (a) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (No. 3 of 2016) read with Sections 138 1 (a) and (b) and 136 (1) (a) and (b) of the same Act. I will refer to that amended Act as the 2016 Act.
4. The original information filed on 9/4/2024, contained six counts. On 31/7/2024, Mr. Tadi pleaded not guilty to the original six counts via virtual court hearing. I listed the trial on 21/8/2024, during the Gizo circuit. On the day of the trial, an amended information was filed dropping the 6 original charges. The amended information contained two counts of persistent sexual abuse, as a result of negotiations and bargaining between Counsel.
5. I arraigned Mr. Tadi on the amended information on 21/08/2024. Mr. Tadi pleaded guilty to the two counts of persistent sexual abuse against ZT and RD. I adjourned the matter for settlement of agreed facts and sentencing submissions to 23/08/2024. I heard sentencing submissions on 23/08/2024. Simultaneously, defence counsel made an application to vary his client’s current bail conditions to enable Mr. Tadi travel to Honiara to settle his son’s school fees, in anticipation of any custodial sentence to be imposed. I delayed announcing the date for the sentence decision and concentrated on the bail application.
6. What is the appropriate punishment for the two offences? This is the issue I must determine.

Summary of agreed facts for ZT

7. In count 1, Mr. Tadi was charged with persistent sexual abuse against ZT on six occasions, in which Mr. Tadi massaged and sucked ZT’s penis. I will reproduce the summary of agreed facts in respect of ZT as follows:-
   • (i) The first incident happened at night on an unknown date between 1^st July 2022 and 31^st October 2022. The defendant told ZT that he had an oil to massage the penis to make it big and strong. The defendant massaged ZT’s penis inside a room in his house, using the oil and advised him that it will take 5 days to complete the massage.
   • (ii) The second incident happened at night on an unknown date, different from the date in incident one, between 1^st July 2022 and 31^st October 2022. Inside the same room, the defendant applied the oil and massaged ZT’s penis.
   • (iii) The third, fourth and fifth incidents, the defendant did the same thing and applied the oil and massaged ZT’s penis in his same room on dates different from the dates in the first and second incidents.
   • (iv) On the last and sixth final incident again at night on a different date, the defendant sucked ZT’s penis in his room, at his house at BCHS.

Summary of agreed facts for RD

8. In count 2, Mr. Tadi was charged with persistent sexual abuse against RD on six occasions, in which Mr. Tadi massaged and sucked RD’s penis. I will reproduce the summary of agreed facts in respect of RD as follows:-
   • (i) The first incident on an unknown date, between 1^st August 2022 and 31^st December 2022, Mr Tadi applied the same massage oil on RD’s penis inside his house. The defendant told RD that the massage oil will make his penis strong and big. And that it must be applied for five days to realise the full effect (big and strong penis).
   • (ii) The second, third, fourth and fifth incidents, Mr. Tadi again applied the oil by massaging RD’s penis in his house on unknown dates different from the date in the first incident.
   • (iii) On the sixth and final incident, Mr. Tadi applied the oil on RD’s penis and when it erected, he sucked RD’s penis in his room, using his mouth.

Appropriate sentence for ZT

9. Mr. ZT was 15 years old and a student at the material time of offending. He was a child under the consenting age. The starting point sentence for sexual offences under Section 136 (F) and Section 139 of the 2016 Act is 8 years in a non-contested matter for a child under the age of consent (R v Sinatau, SICOA-CPAC 14 of 2023, 13^th October 2023).
10. I will accordingly put the start point sentence for ZT at 8 years.
11. I identify the following serious aggravating factors:-
    • (i) Age disparity – The defendant Mr. Tadi was 40 years old. His two victims were 15 and 16 years old. An age difference of around 24 years. As an older person (guardian and teacher) there is an expectation for Tadi to be responsible and accountable in protecting ZT and RD from this kind of offending (R v Ramaia, [2021], SBHC96)
    • (ii) Position of trust breached – The defendant is the custodian or guardian of ZT and RD. This is a matter of serious aggravation in custom. In custom and in the village, communal bonding is very much alive and intact. There is a clear and higher expectation of trust that an adult guardian and teacher ought to take care of his male relatives or students from sexual abuse and immorality. The defendant breached that position of trust, when he turned on his students or relatives to satisfy his sexual gratification.
    • (iii) Psychological harm and trauma – Court should always take judicial notice of the long-term impacts and trauma on the victim despite the lack of medical and professional evidence (Bonuga, 2014 Court of Appeal). Despite the lack of observable physical harm, in all rape or sexual offence cases, the level of psychological harm that creates ongoing issues for the victim is well documented and can be taken judicial notice of as per Bonuga (Liufirara, Court of Appeal 2022).
    • (iv) Repetitive offending – In many cases, as in the present case, the fact an offence is repeated on the same victim is a matter of considerable aggravation which can properly and understandably increase the sentence for the subsequent offence (Alu v Reginam [2016] SBCA 8; SICOA-CRAC 27 of 2014 (22 April 2016)).
    • (v) Offences committed in the comfort of the home – The defendant’s home, being the guardian and teacher of the two victims should be a safe haven, where the two student victims were expected to be raised and taught in upright and morally acceptable behaviours. Instead the defendant turned that home into a crime scene for the two student victims.
    • (vi) Pre-planning – Without a doubt the commission of these two offences involved a lot of pre-planning and tricks. Mr. Tadi told his two victims that he would massage their penises 5 times in order to have big and strong penises. After the fifth massage, Mr. Tadi turned around and sucked his two victims’ penises. This is a trick or deceptive tactic, using a massaging oil.
    • (vii) Young age of the victims (vulnerability), sexual intactness and purity – The defendant took advantage of the two young student boys’ vulnerability (being innocent, weak and vulnerable). The defendant also took advantage of the two victims during their parent’s absence, whilst the two victims were residing with him. The defendant was assuming parental responsibility over his two vulnerable victims.
12. For the above 7 serious aggravating factors combined, I will increase the sentence upwards by 7 more years (1 year for each aggravating factor). Increases due to serious aggravating factors should be made in years, rather than in weeks and months (Bade, Court of Appeal 2023).That will bring me to 15 years total head sentence before mitigation.
13. I identify the following mitigating factors:-
    • (i) Early guilty plea – The defendant pleaded guilty at the earliest opportunity after the original information was amended on 21/08/2024. An early guilty plea is beneficial to the Court (saves the court’s precious time), the two victims (saves them from the intimidating witness box having to recount their sexual ordeals) and the defendant (remorseful for the wrong he committed). Hence it normally should attract 30% reduction on the head sentence. I will allow 5 years reduction.
    • (ii) No previous conviction and first time offender - I deduct 2 years.
    • (iii) Offender’s personal circumstances – I should not consider this in sexual offending cases and if I do, I should do so only to a lesser degree. Hence I give 1 year reduction.
14. The total sentence term I should deduct in respect of mitigation is 8 years. It means the total sentence I will impose on Mr. Tadi after mitigation is 7 years.

Appropriate sentence for RD

15. Mr. RD was 16 years old and a student at the time of the offending. He was a child under the consenting age. I will impose a start point sentence of 8 years for the same reasons as in ZT above.
16. Then I determine the same aggravating factors as in ZT above. That brings me to a total head sentence of 15 years before mitigation. Then for the same mitigating factors as in ZT above, I will reduce the head sentence by 8 years. The final head sentence to impose is 7 years.
17. Hence for ZT, I will impose 7 years head sentence. For RD I impose the same 7 years head sentence. The next issue to decide is whether to make the two sentences run concurrent or consecutive in effect?

Concurrent or Consecutive sentence?

18. On the basis of Alu v Reginam 2016, SBCA 8, the offending (offences) here cannot be seen to be part of a single transaction to the extent that the persistent sexual abuse here was committed repeatedly on two separate victims, on different occasions, at different times, though committed inside one house. Hence the two sentences imposed above should run consecutive rather than concurrent, meaning the defendant will serve 14 years total head sentence.
19. However as I stand back and look at the total head sentence, I can see that it will have a crushing effect on the defendant. Considering the totality principle, the appropriate term to impose is 12 years imprisonment. This sentence term will still reflect the gravity of the two charges laid against the defendant. This is a new form of sexual abuse against young male child victims, which were not heard of before in the 1980s.
20. The gravity of the two offences is reflected in the maximum penalty prescribed by Parliament (life imprisonment). In the 2016 Act, Parliament introduced new sexual offences and increased the penalty. Parliament was remedying a serious and prevalent crime. Parliament’s intent was to protect young girls and boys from sexual abuse by men, who normally are in a position of trust to their child victims, as in this case.
21. Court will be seen to be helping Parliament achieve that same intent by imposing stern sentence terms to deter the offender and like-minded people out in the community from sexually abusing vulnerable child victims. Mr. Tadi I sentence you to 12 years imprisonment. As I stand back and look at the reasonableness, I can still say this sentence term is reasonable in view of the fact that the two offences committed have maximum penalties of life imprisonment each.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE