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R v Tata [2021] SBHC 52; HCSI-CRC 157 of 2019 (29 June 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 157 of 2019

REGINA

V

BONIFACE TATA

Date of Hearing: 8 June 2021
Date of Decision: 29 June 2021

Mrs Margret Suifa’asia for the Crown
Mr. Daniel Kwalai for the Defendant

SENTENCE

Bird PJ:

1. The defendant, Mr. Boniface Tata was originally charged with the offence of having sexual intercourse with a child under 15 contrary to section 139 (1) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. The defendant pleaded not guilty to that offending. On the 5^th May 2021, a nolle prosequi was filed in respect of that information and the defendant was thereby discharged.
2. Subsequently, an amended information was also filed by the Director of Public Prosecution on the 5^th May 2021 whereby the defendant was charged with one count of indecent act on a child under 15 contrary to section 139 (2) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. The defendant was arraigned on the amended information and he had entered a guilty plea. He was convicted as charged.
3. The facts of your case are as follows:

You are from Liwa Village, South Malaita. You are the half-brother of the victim’s grandfather, Mr. Clement Honiola. The victim is Cidilia Honi. She was born on the 20^th July 2009 at the National Referral Hospital, Honiara.
In December 2017, the victim lived with her mother and her baby sister at Clement Honiola’s house at East Kola’a Ridge, Honiara. On the night of the 31^st December 2017, the victim was at home sleeping with her baby sister. Her mother Freda Honi was sitting at the BBQ stall beside the road close to their house. That night you were drunk, having consumed alcohol at Mbua Valley. From Mbua Valley, you went to your brother’s house at 777. No one was there so you went to Clement Honi’s house.
Between the hours of 2am to 3am the victim was sleeping in the room. She was sleeping on a mattress on the floor and her aunty Lucy Honiola and her baby sister were sleeping on a raised bed in the same room. You went and lay next to the victim on the floor. You then lowered the victim’s trousers and touched her vagina, her hips and her breast.
The victim’s mother entered the room and found you behind the door. She also saw her daughter lying on the floor. She then shouted at you and hit you. You thereafter left the room. The matter was reported to the police and you were arrested on the same night.
Your family and the victim’s family have agreed to settle the matter in which your family paid compensation of $2,000.00 to the victim’s family.

4. You must know that the maximum sentence for this type of offending under our laws is one of seven years imprisonment. I am however minded to note that sentences normally imposed by the courts in like offences are not uniform. They largely depend on the peculiar circumstances of each offending.
5. In your case, there is a presence of a number of aggravating features. The first is the breach of trust involved therein. The victim regards you as a grandfather. As a grandfather, you should have utmost concern and care for the victim. Your actions on the victim had shown total disregard and disrespect for her dignity. You have breached the trust placed upon you as a grandfather.
6. The second aggravating feature is the age disparity between you and the victim. You were 44 years old then and the victim was only 8 years old. The age disparity between you is 36 years. This age disparity is a very huge gap. As a mature person your behaviour towards the victim is unacceptable.
7. In the agreed facts, it is obvious that you were under the influence of alcohol on that occasion. Being under the influence of alcohol is no excuse for you to commit this disgraceful act on the victim.
8. The fact that you have entered into the secure room of the victim is seen as an aggravating feature against you. Another adult person was also sleeping in the same room. You must understand that one’s home is supposed to be a safe haven for all individuals but you have committed this offending right in the victim’s home. You absolutely have no respect for the sanctity of the home.
9. On your behalf it was submitted by Mr. Kwalai of counsel that you have pleaded guilty to the offending. I give you credit for that guilty plea. Your guilty plea not only shows remorse on your part but that you have owned up to your offending and that you are willing to face the consequences of your action. Your early guilty plea also saves courts time and resources in conducting a trial into the matter. You have also saved the victim further stress and trauma in coming to court and reciting her past experiences. I have also noted that what you did to the victim is a very disgraceful act in custom and that you have to live with that for the rest of your life. From the agreed facts, your family and the victim’s family have agreed to sort out the problem in custom. A payment of $2,000.00 was made by your family to the victim’s family.
10. I have heard that you have no previous conviction. I commend you for being a law abiding citizen for the most part of your life until this offending. Please learn from your mistake and do not reoffend in future.
11. I have also heard that you have been remanded in custody from the 2^nd January 2018 and was released on bail on the 22^nd November 2019. You have therefore spent a period of 1 year 11 months and 21 days in pre-trial custody. I am asked to take that time into account whilst sentencing you.
12. I have been referred to in a number of cases previously dealt with by this court in like offences. I have also noted that this type of offending is very prevalent in our country. In the case of R v Velo, the defendant was charged with one count of having sexual intercourse with a child under 15 years and one count of indecent act on a girl under 15 years. He was sentenced to 3 years imprisonment on count 1 and 2 years imprisonment on count 2 but suspended for 2 years after serving sentence on count 1.
13. Having noted the aggravating and mitigating features in your case and having taken into account the various case referred to by both counsel, I hereby sentence you to 2 years imprisonment.

Orders of the court

1. The defendant is convicted of one count of indecent act on a child under 15 contrary to section 139 (2) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is hereby sentenced to 2 years imprisonment.
3. Since the defendant had already served a period of 1 year. 11 months and 21 days in pre-trial custody, he had fully served his term of imprisonment.
4. The defendant is to be released at the rising of the court.
5. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge