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R v Dika [2022] SBHC 7; HCSI-CRC 9 of 2022 (8 April 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 9 of 2022

REGINA

V

NELSON DIKA

Date of Hearing: 30 March 2022
Date of Decision: 8 April 2022

Ms. Monica Rehomora for the Crown
Mr. Daniel Kwalai for the Defendant

SENTENCE

Bird PJ:

1. The defendant Mr Nelson Dika is hereby indicted with six counts of sexual intercourse- child under 15, contrary to section 139 (1) (b) of the Penal code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (hereinafter referred to as the ‘Act’). The defendant was arraigned on the information on the 25^th March 2022 and he pleaded guilty to all charges. He was thereby convicted accordingly. He now appears before me for sentence.
2. I must tell you that the offence for which you are charged is serious and carries a maximum sentence of 15 years imprisonment. I am also inclined to say that this type of offending is becoming so prevalent in our various communities and it is of great concern for the courts. For your own knowledge and information, it is against the laws of this land for anyone to have a sexual relationship with a girl who is less than 18 years old. The legal age for consent is 18 years and even if a girl who is less than 18 years does consent to a sexual relationship with you, that consent is not a defence for you.
3. Having said that, I will now state the facts of your case. The complainant and yourself are both from Sisiga Village, Isabel Province. At the time of offending, you were 21 years and the complainant was 13. The incidents occurred on 6 different occasions and you were in a boy-girl friend relationship.
4. The first occasion occurred in June 2021 when you both attended a dance rehearsal. You asked the complainant to be your girl-friend and she accepted. The first time you had sexual intercourse with the complainant was on that night at Rosta’s house.

The second incident also occurred in June 2021. You led the complainant to Rosta’s house and had sexual intercourse with her. The third and fourth incidents occurred on two separate occasions at your house. You took the complainant into your bedroom and had sexual intercourse with her. The fifth occasion occurred in about August 2021. On that occasion, you also took the complainant to your house and had sexual intercourse with her. The sixth and final occasion occurred in September 2021. You also took the complainant to your house and had sexual intercourse with her. On all six occasions, sexual intercourse was consensual.

5. Having stated the facts in your case and in order for me to impose the appropriate sentence in your case, I must discuss both the aggravating and mitigating features. The starting point in the sentencing of offenders like yourself is the comments of the court in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145. In that case, the court had outlined four features that should be taken into account by the courts in sentencing. They included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
6. It is submitted by the prosecution that in your case there is presence of an age disparity. At the time of offending, you were 21 years old and the complainant was 13. The age disparity between you was 8 years. The court notes that the age disparity is not very huge and that you are both young persons.
7. It is also submitted by the prosecution that the repetition of the offence is a serious aggravating feature. You are charged with six counts of the same offence and the offences were committed over a period of about four months. You were engaged in a boy-girl friend relationship at that time. This sentence will show you that the repetition of the offence is a serious matter.
8. It is further submitted by the prosecution that the young age of the complainant is also an aggravating feature. I agree that the complainant was only 13 years old at that time. Nonetheless, what she had done does not speak well with her character. Even at the age of 13 years, she had continued to have consensual sexual intercourse with you on six different occasions before the matter surfaced. She was a willing participant on all six occasions because she was your girlfriend.
9. On your behalf it was submitted by your lawyer that you are a youthful offender. You were 21 years old at the material time and you are now 22 years old. Mr Kwalai has also submitted that you have pleaded guilty to the offending at first opportunity. I give you credit for that plea of guilty. Your early guilty plea shows you are remorseful and that you have owned up to the offending and you are willing to face the consequences of your action. It saves the court’s time and resources in conducting a trial into the matter. It also save the complainant the trauma and stress from giving evidence in a contested trial.
10. It is further submitted on your behalf that you co-operated with the police during investigation. The court has noted that you were in a boy-girl friend relationship with the complainant. Because of that relationship, you had consensual sex on a number of occasions. The complainant was willing to be your girlfriend even at the age of 13. In any event, you are much older than the complainant and you should have been in a position to control what you do in your relationship.
11. It is also submitted on your behalf that you have spent more than 4 months in pre-trial custody. That issue must be taken into account in sentencing you.
12. I have noted from previous cases that in cases of this nature and where the accused person is in a boy-girl friend relationship with each other, the sentences normally imposed by the court is one of a suspended sentence to one of 7 years imprisonment. See the cases of R v Joe [2020] SBHC 81; HCSI-CRC 256 of 2019 and case of R v Saepio [2021] SBHC 33, HCSI-CRC 660 of 2019.
13. In your case, you are charged with 6 similar offences on a single complainant. The offences were committed over a period of about 4 months. In that regard, I am inclined to impose concurrent sentences on each of the charges. For count 1, I put your starting point at 2 years imprisonment. For the aggravating features in your case, I increase that sentence by 1 year. For the mitigating features discussed, I would reduce that sentence by 2 years. On count 1 you are hereby sentenced to 12 months imprisonment. For the repetition of the offence in count 2, I would increase your sentence by 2 months plus the aggravating features and minus the mitigating features. The sentence on count 2 therefore would be 14 months imprisonment. For count 3, I would increase the sentence by another two months plus the aggravating features minus the mitigating features. The sentence for count 3 is 16 months imprisonment. For count 4, I increase the sentence by another 2 months plus the aggravating features and minus the mitigating features. The sentence for count 4 is 18 months imprisonment. For count 5, I increase the sentence by 2 months plus the aggravating features and minus the mitigating features. The sentence for count 5 is 20 months imprisonment. For count 6, I would also increase the sentence by 2 months plus the aggravating features and minus the mitigating features. The sentence for count 6 is 22 months.
14. I have to increase the sentences on each of the charges against you because you have repeated the offences on 6 different occasions and over a period of about 4 months. The respective sentences will show to you the seriousness of repetition of the offences. This type of offences are also becoming very prevalent in our communities and the sentences imposed by the court must show that they are not tolerated. Since the sentences are to be served concurrent to each other, you will serve an imprisonment term of 22 months. You should by now realise that having a sexual relationship with a girl who is under 18 years old is prohibited by law. Consent therefore is not an issue.
15. I direct that the total cumulative sentence imposed is one of 22 months imprisonment. For your youthfulness, I will suspend 6 months of your total sentence. I further direct that the time spent in pre-trial custody be deducted from the total sentence.

Orders of the court

1. The defendant Mr Nelson Dika is hereby convicted of 6 counts of sexual intercourse-- child under 15, contrary to section 139 (1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. Count 1- The defendant is sentenced to 12 months imprisonment
3. Count 2 - The defendant is sentenced to 14 months imprisonment
4. Count 3- The defendant is sentenced to 16 months imprisonment
5. Count 4 -The defendant is sentenced to 18 months imprisonment
6. Count 5 -The defendant is sentenced to 20 months imprisonment
7. Count 6 -The defendant is sentenced to 22 months imprisonment
8. 8All sentences to be served concurrently
9. Total sentence to be served is one of 22 months imprisonment.
10. I direct that 6 months is suspended for a period of 12 months.
11. Time spent in pre-trial custody is to be deducted from total sentence.
12. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge