Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

R v Pola [2022] SBHC 11; HCSI-CRC 514 of 2020 (3 May 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 514 of 2020

REGINA

V

JOHN POLA

Date of Hearing: 4 April 2022
Date of Decision: 3 May 2022

Miss. Patricia Tabepuda & Hellen Naqu for the Crown
Mr. Bobby Harunari for the Defendant

SENTENCE

Bird PJ:

1. 1You have been convicted after trial of one count of sexual intercourse or indecent act- child under 15 contrary to section 139 (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016, (hereinafter referred to as the ‘Act’) and 1 count of indecent act- child under 15 contrary to section 139 (2) (a) of the Act. You now appear before me for sentence.
2. I must inform you that the offence of sexual intercourse – child under 15 is very serious and carries a maximum penalty of life imprisonment. The offence of indecent act- child under 15 carries a maximum penalty of 7 years imprisonment. The tenure of the sentences will show you the seriousness of the charges and you can be severely punished by the court for offences of this nature.
3. 3. In sentencing you, I must take into account the aggravating and mitigating features in your case. On the outset, I am inclined to take into account the principles set out by the court in the case of Mulele v DPP and Poini v DPP [1985-1986] SLLR 145. In that case, the court had set out four features that must be considered by the courts in the sentencing of sexual offenders. The four features included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
4. In your case, it was submitted by the prosecution that there is a presence of age disparity and abuse of position of trust. At the time of offending, you were 25 years old and the complainant was only 5 years old. The age disparity between you and the complainant was 20 years. That is a huge age disparity and it shall be weighed against you.
5. You are the complainant’s paternal uncle. The complainant’s father is your elder brother. That has placed you in a position of trust and you have breached the trust placed upon you by your brother and the family. That is a serious aggravating feature in your case. I have also noted that the complainant was merely 5 years old when you sexually molested her. You have taken advantage of her young age and her vulnerability to fulfil your own sexual lust and for own self-gratification. You have allowed yourself to stoop down so low and committed the offending. You absolutely have no respect for the dignity of the child who is your own niece.
6. I have also noted that you have repeated the offending on the complainant. That repetition is evident from the two charges that were laid against you. It shall be shown to you in this sentence that repetition of the offence is a serious aggravating feature.
7. You have pleaded not guilty to the charges against you and the complainant had to be called to give evidence in a contested trial. As if it was not enough to subject the child to emotional stress and trauma by committing the offences on her, she was also required to give evidence in your trial. She was further subjected to stress and trauma when giving evidence in court. In the case of R v Bonuga [2014] SBCA 22 and applied in the case of R v Liva [2017] SBCA 20, the Court of Appeal had stated inter alia, “There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider that judicial notice needs to be taken of the devastating effect on the victims of sexual offending, especially young victims as in this case. The psychological trauma cannot be ignored. It is devastating for the complainant to be sexually molested and even more devastating to give evidence in a contested trial’.
8. On your behalf, it was submitted by your lawyer that you are 30 years of age. You were 25 years old at the time of offending. You are single. Your highest level of education was the commencement of a Bachelor’s degree in Commerce at the University of the South Pacific Centre in Honiara in 2016. You committed theses offending and was arrested and remanded in custody in 2020. As a result, you did not manage to complete your Bachelor’s programme. I have noted that you were still an youthful offender at the time of the offence.
9. I am told that you have no previous conviction and the court should take into account your previous good character. Having noted that submission, I am also inclined to note the court’s view in the case of R v Ligiau and Dori [1985-1986] SILR 214, in which the court had stated that in sexual offences as a whole and attempted rape and rape, matters of mitigation personal to the offender must have less effect on sentence than in most other serious crime”. This means that notwithstanding your previous good character, that aspect of your mitigation will have less impact on your sentence.
10. I am told that you have a good prospect of rehabilitation. You have committed the offending in in 2020. You were released from custody on the 26^th May 2021. Since being released from custody, you have not re-offended. I urge you to learn from this mistake and do not re-offend in future. I have noted you future plans and your ambition to continue with your education. You were remanded in custody on the 13^th May 2020 and released on the 26^th May 2021. You have spent a period of 1 year and 13 days in pre-trial custody. I am urged to take that period of time into account in sentencing you. Your lawyer have also submitted that you are remorseful. I do not think that is a viable mitigating factor when you have already subjected your niece to give evidence in court.
11. I have also noted that there was some delay in the prosecution of the case. The offences were committed in 2017 and you were formally charged in 2020. There was a delay of about 3 years before this matter was commenced in the Magistrate Court.
12. To further assist me in sentencing you, I am urged to take into account the starting points enunciated in the case of Soni, Supa and Chachia v Regina SICOF-CRAC 27, 28, 35 of 2012. The Court of Appeal were of the view that in all but the most exceptional cases, the sole fact that the child is below the age of consent should in itself bring the starting point to eight years whether the conviction is for rape or defilement. Other authorities were cited by both counsel for the prosecution and your lawyer and I have noted them.
13. On the peculiar circumstances of your case and on count 2 of the charges against you, I would put your starting point at 8 years imprisonment. For the aggravating features in your case, I would increase that sentence by 2 years. For the mitigating features raised on your behalf, and especially for the delay and late prosecution of the matter, I reduce the sentence by 4 years. Total imprisonment term to be served is one of 6 years imprisonment. For count 3, I put the starting point at 3 years imprisonment. For the aggravating features and especially the repetition of the offence on the complainant, I increase the sentence by 2 years. For the delay and late prosecution of the matter, I reduce the sentence by 3 years. Total sentence on count 2 is one of 2 years imprisonment. I direct that the time spent in pre-trial custody be deducted from the total sentence.

Orders of the court

1. The defendant is hereby sentenced to 6 years imprisonment on count 2
2. The defendant is hereby sentenced to 2 years imprisonment on count 3
3. I direct that the sentences are to be served concurrently
4. I further direct that the time spent in pre-trial custody be deducted from the total sentence.
5. Right of appeal.

THE COURT
JUSTICE MAELYN BIRD
PUISNE JUDGE