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R v Melton [2023] SBCA 30; SICOA-CRAC 9020 of 2023 (9 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

EX TEMPORE JUDGMENT

1. This is an appeal in Criminal Appeal case 20 of 2023 between the Crown and Mr Simon Melton. Mr Melton was charged and pleaded guilty to two charges of defilement of a girl under 13 years of age contrary to Section 142 of the Penal Code, and a further two charges of sexual intercourse with a child under 15 contrary to Section 139 (1) (b) of the Penal Code as amended by Penal Code (Amendment) Sexual Offences Act 2016.
2. The reason for the two different types of charges was the intervention by the Legislature and the passing of the substantial amendments to the Penal Code in 2016. It is unnecessary to go to any great extent into the background of these matters. The Respondent is the stepfather of the Complainant. Between November 2014 and January of 2017, on four discrete occasions, he had sexual intercourse with this child.
3. The Judge set a starting point, discussed aggravation and mitigating features, and we agree with his characterization of both the aggravating and the mitigating features.
4. He concluded that the appropriate sentence on the defilement charges was 10 years imprisonment on each charge to be served with concurrently. He went on to say that if he made a cumulative sentence then the final sentence would be unreasonably high. He then went on and discussed the unlawful sexual intercourse charges and said they would make no difference to the overall sentence and said “I do not need to waste my time doing something that will not make any difference to the head sentence of 10 years”. Unfortunately, that completely misunderstands the position and the obligations of a Judge, both by statute and by the oath of office.
5. It is for Judges to sentence persons before them who are convicted of any offence or have pleaded guilty to any offence. How he deals with them is it discretionary and quite often there will be wide range of circumstances that it will be necessary to take into account, but he cannot simply side step it and say it is a waste of time. Both by statute and the judicial oath a judge must sentence convicted offenders who come before him.
6. The appropriate course is for us to sentence Mr Melton on the two charges under the Penal Code. Given previous cases that we have heard in the session, the starting point would be one of eight years. There would be aggravation because of the breach of trust and the age of the child. Mitigation is a guilty plea and that he has a clear record. The aggravating features would add to the starting point another four years to 2 years imprisonment and the mitigating features allowed in 30% of the mitigating factor will take that just over eight years. We would round that to eight years.
7. On the two counts of sexual intercourse with a person under the age of 15, he is sentenced on both counts to eight years imprisonment to be served concurrently with the 10 years sentence as currently being served for the defilement charges. The effective sentence, therefore, as far as Mr Melton is concerned, remains 10 years imposed by the Judge for the defilement charges.

Sir John Hansen
Acting President of the Court Appeal