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R v Koivania [2024] SBHC 35; HCSI-CRC 583 of 2023 (12 April 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case 583 of 2023

REX

V

JOHN BULEHAO KOIVANIA

Date of Hearing: 1 April 2024
Date of Sentence: 12 April 2024

Ms Naqu for the Crown
Ms Sikua for the Defendant

Keniapisia; PJ

SENTENCE

Introduction and admitted facts

1. On the 18/03/2024, Court convicted you after you entered a guilty plea to the charge of persistent sexual abuse and rape of a child contrary to Section 142 (2) and Section 136 F (1) (a) and (b) of the Penal Code Act (Cap 26), as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 - hereafter referred to as “the 2016 Act”. Counsel also filed agreed summary of facts on the 14/03/2024. Now I have to determine the appropriate punishment, following your guilty plea and admitted facts.
2. Court will start by adopting the alarming agreed summary of facts filed on 14/03/2024: -
   • (i) The complainant is Ms Francisca Togaverana, who is 12 years of age and resided with her parents at Ngalitutulalina village, South Guadalcanal, Guadalcanal Province.
   • (ii) The complainant is the first-born child of Ms Idalyn in her first marriage.
   • (iii) The complainant was born on 9 August 2011.
   • (iv) The complainant’s mother remarried to the accused, Mr John Bulehao Koivania and they have two other children.
   • (v) In 2022, the complainant was living with her mother and the accused at Ngalitutulalina village, Weather Coast, Guadalcanal Province.
   • (vi) She was attending grade 1 at Lalaoto Primary school.
   • (vii) Her step father, the accused, is a violent man who often threatened to cut the complainant and her mother if the complainant went out somewhere.
   • (viii) On an unknown date in 2022, the complainant went to the garden with her mother and the accused. When they arrived at the garden, the accused told the complainant’s mother to stay at the garden while he and the complainant went to collect coconuts at the Kolopaopao plantation.
   • (ix) When they arrived at the plantation the accused ordered the complainant to take out her clothes. The complainant refused but the accused threatened her that if she refused to take out her clothes, he will cut her with a bush knife which he was holding.
   • (x) The accused then moved closer to her, removed her clothes, laid her on the ground and laid on top of her and had sex with her.
   • (xi) After the accused had sex with her, he then warned her not to tell her mother and that if she reported, he would cut her and her mother with a knife.
   • (xii) After that time, whenever the accused feels like having sex with the complainant, he would do it with her whilst her mother is away.
   • (xiii) On the second occasion, on another unknown date in 2023, the accused had sex with her inside their house at Ngalitutulalina village, Weather coast, Guadalcanal Province. At that time, she was inside the house when the accused approached her and forced her to have sexual intercourse with him.
   • (xiv) He then had penile sexual intercourse with her. He also used a knife to threaten her and warned her not to report to her mother.
   • (xv) On the third occasion, on unknown date in 2023, the accused had sexual intercourse again with the complainant in the plantation where the first incident occurred.
   • (xvi) He also forced her to have sex with him.
   • (xvii) The complainant was afraid to tell anyone because the accused threatened to kill and cut her with a knife.
   • (xviii) By the month of May 2023, the complainant started to feel weak and her body started to change so the complainant’s grandmother and aunty asked her about the changes to her body and she informed them that she did not know what was happening to her.
   • (xix) Her grandmother further stated to her that it seems that she was pregnant.
   • (xx) The complainant was then assisted to the Madakacho clinic where she was examined and the nurse confirmed to her grandparent that she was pregnant.
   • (xxi) The complainant’s grandparent and her aunty Jenny questioned her and she finally reported that the accused impregnated her.
   • (xxii) The matter was eventually reported to the police by her uncle.
   • (xxiii) The complainant has now given birth to a child.

Serious offence – Life imprisonment

3. At the outset the offence you are charged with and convicted for is a very serious one under the 2016 Act, for it carries a maximum penalty of life imprisonment (Section 142 (2) of the 2016 Act). The hefty punishment reflects parliament’s serious intent to tackle this serious sexual offending head-on. However, Court has power to impose a lesser sentence term.

Starting point sentence and departure

4. In adherence to sentencing guidelines the Court of Appeal stipulated, I will first establish the starting point sentence. The starting point sentence should be 8 years. The case of Sinatau^[1], the Court of Appeal said that for every unlawful sexual intercourse with a child under 15 years the starting point sentence is 8 years. The victim here was 11 years old, still below 15 years when the first plantation incident occurred in year 2022. Defence has no start point sentence in written submission.
5. Court will depart from the starting point sentence because of the peculiar facts in your offending. Departure is permissible under Pana v R [2013] SBCA 19, SICOA-CRAC 2013(8^th November 2013), where the facts of this offending comprised of circumstances that are peculiar – such circumstances include – betrayal of trust by the accused in his position as father to the victim; the sexual slavery-like home where the victim lived with the abusive father; physical harm done to the complainant by the accused; the emotional impact that this experience has had and will have on the victim; the young schooling age of the victim and subsequent pregnancy. I need to elaborate further on these peculiar circumstances that warranted a departure: -
   • (i) Betrayal of trust – The accused got married to the victim’s mother. The accused is the victim’s father, even though a step-father. There is no difference. He is still the father of the victim. The expectation of trust of a child towards a father is one of the highest moral standards. A father feeds, takes care, provides home and security and love and affection or bonding for his daughter, or his children. For the accused to betray these fatherly beatitudes is something very fundamentally morally decaying. It is most regrettable to note that the accused married the victim’s mother so that he could have ease of access to satisfy his sexual desires on the innocent daughter of his new wife. To me it is like playing a morally decaying trick – marry the mother and access her daughter to satisfy the accused’s sexual gratifications. No father should ever dream of doing this to his own daughter. This is sexual abuse at its highest degree on the most vulnerable young grade 1 student like the victim. This is the kind of sexual abuse and exploitation parliament intended to arrest under the 2016 Act, knowing that this kind of sexual offending is prevalent in domestic relationships in this country prior to 2016 Act.
   • (ii) Sexual slavery home – Accused married the victim’s mother only to sexually supress and imprison the victim. The admitted facts above tell me this. He used the victim as his sexual cooking pot. I say this because of admitted facts in 2 (iv) & (v), 2 (vii) and 2 (xii). He created a domestic home of fear for the victim. Then whenever he wants sex, the victim will submit to his sexual desires out of fear for her safety. And each time he had sex with her, he will warn her not to tell anyone, otherwise he will kill her with a knife. The home I see in the admitted facts is no different from a sexual slavery camp, for the young victim. The accused could have sex at any time, because he exercised his authority over the victim with violence and fear (refer agreed fact 2 (vii) and 2 (xii) above).
   • (iii) Physical harm done to the victim – See victim impact statement, where the victim said she fell down once when the accused chased her and hurt her hands. She also hurt her legs. The most enduring physical harm is penial sexual intercourse because accused was pushing his penis into the victim’s vagina through an intimidating and fearful domestic environment in the home. I called this “sexual slavery-like home.”
   • (iv) Emotional impact that this experience had on the victim – I repeat 4 (ii) above and further add that the sexually traumatizing experience the victim went through was exacerbated by her subsequent pregnancy and giving birth to a child. Who will wake up at night to assist her when the baby gets sick and needs the helping hands of a father and mother? This will be the most traumatizing life forced upon the victim. And it will haunt her for the rest of her life. The most permanent and invisible scar forced on the victim.
   • (v) Young schooling age and subsequent pregnancy – The victim was in grade 1, just starting her journey into her education. They say education is the key to the future well-being of any young child. It is a basic human right of every young child. So, it means the victim’s life has sadly ended due to the sexual madness of her father resulting in her subsequent pregnancy. The key to her future well-being was thrown into the ocean.
6. For all of the above peculiar circumstances of this offending, I will depart from the starting point sentence of 8 years to start at 14 years. This also makes perfect sense because the maximum penalty for your offending is life imprisonment.

Aggravating factors

7. Then I will uplift the start point sentence due to the presence of serious aggravating features in this case. I will explain the aggravating features to justify the uplift: -
   • (i) Young age – The victim was a grade 1 student at the age of 11, when the accused first had sexual intercourse with her in year 2022, in the plantation (admitted fact number 2 (viii), 2 (ix), 2 (x) and 2 (xi)). Her young and schooling age are serious aggravating features. The accused had intruded into her sexual purity and intactness. The accused took advantage of the young girl’s vulnerability in the home, where he exercised authority and ruled with fear and intimidation making the already weak young girl to go weary in her “will” and become a subdued slave to the accused’s sexual gratification.
   • (ii) Use of weapon to secure a slave-like sexual animal – Every time accused had sex with the victim, he would threaten her with a knife not to tell anyone. That knife became an intimidation weapon, through which the victim submitted to the sexual desires of the accused out of fear for her safety. The victim lived a life under the care of her father filled with fear that anytime she could be made to serve the sexual needs of her father. And there is nothing she could do to resist because the accused ruled the home for her with hostility, intimidation and fear. Her night mare I could imagine is “What time will I be forced to satisfy the sexual evil desires of this person I come to know as a father?” It was indeed a horrible experience for any young girl to go through.
   • (iii) Disparity of age – The accused was 47 years old. The victim was 11 years in 2022, when the first sexual penetration was forced on her in the plantation (admitted fact 2 (viii) – 2 (xi) above). An age difference of 35 years. As an older person (father) there is an expectation of being responsible and accountable in protecting her young daughter from this type of sexual offending.
   • (iv) Repetitive offending – There were 3 separate incidences of rape (sexual penetration) put together under this one offence. I can imply that the accused was taking turns to have sex at “will” with the victim and her mother (wife of the accused). I can also imply that the victim is a young girl that the accused could turn to at any time (more than 3 occasions) to have sex. I imply this on the basis of agreed fact number 2 (xii) above. The sad thing is the victim lived in a home of fear that any time the accused could turn onto her for sex. Accused had no moral conscience, but ruled with authority, with fear, intimidation and hostility towards his children. For the victim that domestic environment of intimidation extends to include sexual violence and abuse.
   • (v) Breach of trust – The accused is the father of the victim. There is trust, being that the accused is a father figure to the victim. The accused ought to give care, respect and bonding in his position of responsibility towards the victim. Instead he used the victim as a sexual slave tool for his sexual madness, thereby defiling and abusing his trust position towards the victim. He breached that position of trust.
   • (vi) Emotional and psychological harm – The emotional and psychological harm cannot be measured but the scars of regret, degrading human treatment and low self-esteem feelings will remain in the victim’s heart and mind for the rest of her life. I should take judicial notice of such negative long-term impact (Regina v Bonuga [2014], SBCA; 22 SICOA-CRAC 12 of 2014 (17^th October 2014).
   • (vii) Subsequent pregnancy – This is the worst suffering forced upon the victim – to raise a child as a single mother without a: fatherly figure head, fatherly care and fatherly love and protection.
   • (viii) School cut short – They say education is the key to the future well-being of a child. If that is true and I know it is, then the victim’s life and a future for her was cut short. This is an aggravating factor against the accused. And he knew it, that he cut short and destroyed the key to the future well-being of his own daughter.
   • (ix) Isolated location – Sex twice in the coconut plantation. This is an isolated spot where the accused could have the sexual slaughter without any interruption. For the victim it means she could not call out for help or make an escape. Isolated location also created fear in the mind of the victim where she submitted to have sex out of fear.
   • (x) Pre-planning – Father has planned all of this. First to marry a wife with a young daughter. Then he would look for chances when his wife was not at home to have sex with the daughter in the house. This lasted for more than 3 occasions and was the usual habit of the accused (agreed fact 2 (xii)). On two occasions accused took the victim daughter to an isolated coconut plantation to have sex. This was well planned because the mother would think that they were going about their normal domestic duties for family survival.
   • (xi) Vulnerability – Accused preyed on the victim’s vulnerability as a young daughter in the home, where he could turn to the victim to have sex at “will” whenever he wants and whenever there was space in the home during the mother’s absence.
   • (xii) Physical harm – Victim’s impact statement shows there were injuries to the victim’s hands and legs. But the worst physical injury or harm the victim suffered was the continual penial penetration of victim’s vagina. The very act of rape is physical violation of a victim and physical harm is inherent in it (R v Liufirara [2023] SBCA 10; SICOA-CRAC 30 of 2022 (28^th April 2023).
8. For all of the above 12 serious aggravating factors combined, I will inflate the start point sentence by 16 years (about 1.3 years for each aggravating factor), also noting that parliament’s maximum sentence is life imprisonment for this serious offending. The case of Bade-v-R [2023] SBCA 39; SICOA-CRAC 9017 of 2023 (13 October 2023), Court of Appeal stipulated that inflation due to serious aggravating factors should be in years and not months. Total head sentence will therefore be 30 years before mitigation.

Mitigating factors

9. Then I will reduce the inflated sentence due to mitigating factors present in your case. For early guilty plea, I will allow a 30% reduction, which worked out to be 9 years. Early guilty plea is good for the Court and the victim, in that the victim will not be subjected to the trauma of recounting her sexual ordeal in the witness box. For the Court, it saves its precious time. And it also shows remorsefulness and taking responsibility for one’s actions on the part of the accused. These are good reasons to allow 30% reduction. First time offender with no previous conviction, I allow 2 years reduction. I take little notice of the defendant’s personal circumstances submitted on by the defence such as family obligations. Cases like Rex-v- Wilfred Ba’ai [2023] SBCA 9; SICOA-CRAC 7 OF 2022 (28^TH April 2023) stipulated that personal circumstances in sexual offences as a whole, rape and attempted rape, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes.

Conclusion and Orders

10. The final head sentence I will impose to reflect the gravity of your offending is 19 years. This sentence term will start to run from 18^th September 2023. This punishment will deter like-minded offenders out there and for you it will allow for a time of rehabilitation and soul-searching reflections and reforms in the correctional facility.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

^[1] R v Sinatau, SICOA-CRAC, 14 of 2023 (13^th October 2023).