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Koti v R [2022] SBCA 3; SICOA-CRAC 04 of 2021 (8 July 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. Christopher Koti, the appellant, with leave, appeals against the sentence of 16 months imprisonment imposed on 22 April 2021following his conviction for attempted defilement of a girl under the age of thirteen years contrary to section 142(2) of the Penal Code [Cap 26].
2. The parties to this appeal were offered the choice of a virtual or paper hearing. Presently the borders to the Solomon Islands are closed and the Court of Appeal is thus constrained. In the event the parties chose to have the appeal dealt with by the circulation of papers. We reserved the right to call a virtual hearing should any matter arise on which we sought to ask questions of counsel. No such matters arose.
3. Briefly, the circumstances of this offence, which were set out for the sentencing court in a summary of facts, are that the offender was twenty-five years of age when he attempted to have sexual intercourse with a girl of eleven years of age. The act of intercourse was not completed owing to the physical differences between an adult male and a female child of only eleven years of age. The failure to complete the act was not due to lack of effort on the part of the offender but credit must be given since he recognized the pain he was inflicting on the child and that lead to him aborting his attempt at intercourse.
4. The appellant pleaded guilty to the charge of attempted defilement in December 2020 even though the offence took place in 2009. The delay can be attributed to all parties to the case, including the appellant. After an initial arraignment in the magistrates’ court, the accused was discharged and thereafter was not served with new process until 2018. He then appeared charged with defilement to which he pleaded not guilty. Eventually that matter was reduced to attempted defilement hence the delay. It is a matter that may be taken into account on sentence, however much will depend upon what responsibility for the delay can be attributed to the appellant.
5. In sentencing, the judge regarded the fact the parties were family members as a feature of aggravation. The appellant was in a position of trust as regards his niece who found herself sleeping along with a smaller child in the house of her aunty and uncle. She was entitled to feel safe in those circumstances and this is where she was in fact abused. There were no other aggravating factors identified by the sentencing judge.
6. The appellant was of previous good character and pleaded guilty to this offence at an early opportunity. His education is minimal. He and his wife live are rural dwellers. His family has grown from two in 2009 to four at the time of sentencing.
7. The maximum penalty prescribed for this offence in 2009 was two years imprisonment. In relation to a girl between the ages of 13 and 15 the penalty for the same offence was, inexplicably, much higher. As referred to by counsel in submissions and also by the sentencing judge, since the commission of this offence the maximum penalty for the replacement offence is substantially higher. Under section 139 (1) (a) the present prescribed penalty for conduct such as this with a victim of this age is life imprisonment.
8. The sentencing judge was asked to consider a starting point of twelve months imprisonment given that the maximum sentence available was two years. He declined to adopt that starting point noting the stark difference between the maximum penalty then and now and the reasons which led the legislature to amend the legislation to the extent that it did. That amendment, in his view, was brought about by public concern for the prevalence of sexual offences and young children. He did not go on to identify a starting point nor did he identify any further mitigating features save delay already referred to.
9. In imposing sentence, the judge, after giving credit for a guilty plea and taking into account the delay arrived at period of imprisonment of sixteen months. To arrive at that figure giving due credit, it must be the case that his starting point, although not specified, was close to two years. Two years imprisonment was then the maximum available penalty.
10. It is preferable that in sentencing, the judge sets out the starting point he has arrived at considering the offence and any factors he has identified as aggravating the offence. After that the discount given for a guilty plea should be set out and thereafter any further discount for other factors. Here that was not done but even without particularisation it is possible to ascertain what the judge had in mind and that appears to accord with what he was required to do.
11. The maximum penalty is usually reserved for the worst type of any particular category of offending. In submissions, it was said that this offending was not of that type. Respectfully, we do not agree with that submission. This victim was in a place where she should have been safe. She was in the care of adults in whom she was entitled to hold trust. This was a man of twenty-five years. Nothing, save the perceived impossibility of further penetration due to size, stopped this offending. The victim was not even 12 years of age. Society, and the courts, are entitled to and do take a most serious view of this type of offending.
12. Sentences of imprisonment should be expected for sexual offences in general and underage sex in particular. No factor apparent in this case warrants a departure from the expected norm of an immediate custodial sentence. There is nothing in the personal circumstances of the offender or in the offence itself which warrants any suspension of the sentence.
13. This appeal against sentence is dismissed and the original sentence imposed confirmed.

Goldsbrough P
Palmer CJ
Hansen JA