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R v Hitu [2020] SBHC 103; HCSI-CRC 184 of 2019 (3 August 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 184 of 2019

REGINA

V

AARON HITU

Date of Sentence: 3 August 2020

Circuit: Gizo, Western Province

Counsel
DPP Olutimayin R for the Prosecution
Alasia B for Accused

SENTENCE

Maina PJ:

The accused Aaron Hitu has been convicted on three counts of defilement contrary to section 142 (1) of the Penal Code.

Brief Facts

The incidents happened at Terere village Munda Western Province.

On the First incident, the accused Aaron Hitu in year 2013 was drunk and had sexual intercourse with the complainant Esther Hitu. Accused Aaron Hitu pulled down her skirt and pant and he kissed her. He then licked her vagina and had sexual intercourse with complainant.

On the Second incident, the accused Aaron Hitu at one night in 2014 went in the complainant’s room. He pulled down Esther’s clothes and underwear, licked and pushed his penis in her vagina.

On third incident, sometime in 2015 in one night accused Papa olo went in Esther’s room. He took off the complainant’s clothes and kissed her. The accused Papa olo then licked Esther’s vagina and pushed his penis in the vagina. After he had sexual intercourse with her he pulled out his penis from the vagina.

The Court

The complainant Esther Hitu was born in 2003 and the incidents happened to her when she was 10 years in 2013, 11 years in 2015 and 12 in 2014.

The offence of defilement under section 142 (1) of the Penal Code is felony, and shall be liable or to life imprisonment. For the sentences the court is to decide the appropriate sentence for convicted persons. The cases Mulele v Director of Public Prosecution; Poini v Director of Public Prosecution^[1] set out a policy guidelines in the sentencing for the defilement offences with aggravating features.

“We were asked to formulate a sentencing policy for future guidance. Each case must defend on its own facts but matters which would be considered amongst others are on the one hand disparity of age, abuse of position of trust and subsequent pregnancy and on other hand the character of the girl herself”

With the starting point for sentencing of an adult person for defilement, the case Regina v Bosomata^[2] state that it should be 8 years and emphasized by the Court of Appeal in the case Regina v Bonunga^[3] that the 8 years as the starting point for those with duty of responsibility. These cases and others with similar charges provide the guideline or tariff for sentencing for defilement of a girl less than 13 years and that should be in the vicinities or ranges of 5 years to 11 years.

Delay

The offending of the accused was uncovered and reported to the Police in 2016 and from now until today it is about 4 and half years. Although the first offending by the accused was in 2013 it cannot be said the delay is 8 years or so. I would say that the delay before the discovery of these offending is entirely in the hands of the accused. For this case I find that there is no undue delay in this matter.

The Sentence

For the three charges against the accused, the aggravating factors are the disparity of ages with about 50 years, breach of duty of care or abuse the position of trust i.e. when the original parent and relatives trusted or relied on the accused to look after, keep and provide for all things for her he had abused her.

For the mitigation, accused is 60 years, co-operate with the Police and this court all taken into account in this sentence. No previous conviction was provided and I treat this offender as first offender.

Upon taking into account all the above matters it is my view, the accused Aaron Hitu deserves a deterrent sentence from this court and so others to see and learn from as it is interesting to learn when High court comes on court circuit here or this region the majority of before the court are sexual offence cases.

With this case or therefore the accused Aaron Hitu is sentenced to 3 years imprisonment for each count of defilement which he has been charged and convicted on them.

ORDERS

1. Ct 1 – Three (3) years imprisonment
2. Ct 2 – Three (3) years imprisonment
3. Ct 3 - Three (3) years imprisonment
4. Ct 3 is suspended
5. Accused to serve a total of 6 years imprisonment

THE COURT
Justice Leonard R Maina
Puisne Judge

^[1] [1986] SBCA 6, [1985- 1986] SILR 145 (14 January 1986)
^[2] [2013] SBHC 37
^[3] [2013] SBCA 22