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R v Melton [2023] SBHC 109; HCSI-CRC 137 of 2019 (2 June 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 137 of 2019

REGINA

V

SIMON MELTON

Date of Hearing: 19 May 2023
Date of Sentence: 2 June 2023

Ms Oligari for Crown
Mr Alasia for Defendant

Verdict and Sentence

Introduction

1. By information filed 15/4/2021, you were charged with two (2) counts of defilement of a girl under 13 years contrary to Section 142 (1) of the Penal Code Act (Cap 26). In the same information you were also charged with 2 additional counts of sexual intercourse or indecent act with a girl between 13 - 15 years contrary to Section 139 (1) (b) of the Penal Code 2016 Act. For the first 2 counts of defilement, the maximum penalty is life imprisonment (Section 142 (1) of the Penal Code). For the second 2 counts, the maximum penalty is 15 years (Section 139 (1) (b) of the 2016 Amendment).
2. You entered an early guilty plea to all four charges in October 2022 premised on summary of agreed facts. The summary of agreed facts filed on 19^th May 2023 are principally adopted below in paragraphs 2.1 to 2.19:-

THE INFORMATION

1. The defendant is indicted on an Information on the following:-
   1. Count 1: Defilement of Girl under 13 years of age, contrary to section 142 of the Penal Code. Cap 26.
   2. Count 2: Defilement of Girl under 13 years of age, contrary to section 142 of the Penal Code, Cap 26.
   100. Count 3: Sexual Intercourse – child under 15 years contrary to section 139 (1) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
   4. Count 4: Sexual Intercourse – child under 15 years contrary to section 139 (1) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant pleaded guilty to all charges against him at the High Court.

BACKGROUND

3. The defendant is 47 years old, Simon Melton of Sikaiana village, Malaita Outer Islands, Malaita Province. He was 45 years old at the time of the offending.
4. The complainant is Ms Ronella Maeuta, who is a native of Tikopia, Malaita, Western and Isabel Province.
5. That the complainant was 11 years old at the time of the first and second offending.
6. That the complainant was 13 years and 4 months old at the time of the third and fourth offending.
7. The complainant’s mother is Yvonne Maeuta.
8. The biological father of the complainant is Ronald Faka.
9. In 2011, the complainant’s mother and father separated. And in 2013, the complainant’s mother re-married and married the defendant.
10. The defendant is related to the complainant as her step-father.
11. That at the time of the commission of the offence, the complainant resides with her mother and step-father.
12. That at time of the commission of the first offence, complainant was doing her grade 4 at Ringi Community High School.

THE OFFENDING
1st Incident

13. On an unknown date between 1^st November and 30^th November 2014 in Noro, the accused Simon Melton had consensual sexual intercourse with the victim. In the morning of the day of incident, the victim went to school and at about break time at 11 am, the victim returned home early. She was complaining of abdominal pain. She asked the defendant to massage her stomach. The defendant told her to ask one of their female neighbours to massage her but she insisted the defendant to massage her. The defendant massaged her stomach and touch her thighs then her vagina. The defendant then asked her for sexual intercourse. The defendant then proceeded to have sexual intercourse with the complainant. He pulled down her trousers, spread her legs and pushed his penis inside her vagina and had sex with her.

2nd Incident

14. On an unknown date between 1^st November and 30^th November 2014 in Noro, the defendant and the victim had sexual intercourse at the defendant’s family home. About 4 am of the date of the incident, the defendant and the complainant’s mother left for work early that morning. Between 5am-6am, the defendant returned to his house after leaving his wife at her work place. The victim was at the house that time. Both the defendant and victim had agreed on the previous day to have sexual intercourse while the victim’s mother was at work. The defendant had arrived at the family house and had sexual intercourse with the victim, he push his penis into her vagina (in and out) and had sex with her in his bedroom. He ejaculated and went outside of the bedroom.

3rd Incident

15. On December 25^th 2016, the defendant worked night shift at Solbrew Company. The defendant and the victim’s mother and the victim had resided at Feraladoa settlement in Honiara. About 9am the defendant had returned home from work. The victim’s mother wanted to go to Lunga, thus the defendant, the victim’s mother and the victim all walked to Talise bus stop. At Talise bus stop, the victim’s mother boarded a public bus to Lunga. The defendant and the victim instead of going to town returned to the house and had sexual intercourse.

4th Incident

16. On Saturday 14^th January 2017, the accused then have sexual intercourse again with the complainant. This was after her mother went to fetch some water and wash dishes. Only the defendant and the victim had stayed in the house. The defendant had asked the victim for sexual intercourse. She agreed and both had sexual intercourse. By this time her body started to react differently towards the defendant, whenever he touches her or approach her.

REPORT TO POLICE

17. On the 4^th of February 2017, matter was reported to Naha Police.
18. Dr Anaseini Maneipuri examined the complainant on the 7^th of February 2017, who stated that the hymen was not intact.
19. The defendant was arrested and remanded on the 8^th of February 2017, and later released on bail on 7^th June 2017 until today.

Serious offending - defilement

3. The first 2 counts of defilement against a child under the age of 13 years are very serious offences, as reflected in the statutory punishment of “life imprisonment”. Defilement of girls under 13 years is serious because you were violating against the purity or chastity or virginity of the 11 years old victim/complainant, who the facts revealed was your step daughter. You are married to her mother (you are her mother’s second husband). And instead of looking after the welfare of your step daughter, who was a grade 4 student at the material time of first offending, you turned on her to satisfy your sexual desires (sexual exploitation). You are no doubt aware that what you did to your step daughter was unacceptable or seriously wrong in culture, church and in law. It is difficult to comprehend what you did to your step daughter. Whilst it is known that you are married to her mother in the public, yet you also marry her daughter the complainant in private (having sexual relations with her). I do not think it is acceptable anywhere in Solomon Islands for a man to marry a women and to also have sexual relationship with the woman’s daughter. And what’s worse is that she was a very young girl (11 years old student attending grade 4 at the time of defilement). You should be helping her in her schooling because education is important for her future. Yet you have made her virginity and dignity unclean or impure by having sex with her at such a very young age. Every parent of such a young girl should be proud of her and strive to protect and ensure that their daughter is kept spotless and virgin until marriage. So defilement is indeed a serious crime, more so when committed by a father on his daughter. It is repugnant. What you did to your step daughter will ruin her reputation, dignity and virginity for the rest of her life. It will be a “mental state of witch-hunt” for her for the rest of her life. It will daunt on her that she gave her body to you for sexual pleasure rather than for sexual marriage. It will daunt on her that you exploit her for sexual satisfaction when she crossed your pathway through her mother’s marriage to you. She will regret that you have ruined her virginity outside of marriage. She will be ashamed that the one she trusted as her father had ruined her sexual purity. All these thoughts, pang of conscience will occupy her mind for the rest of her life. These are what I meant by “mental state of witch-hunt”.

Starting point sentence for defilement and justifications

4. I will put the starting point sentence here at 8 years because the victim was under the consenting age and was a child (11 years). Additionally, this is a serious crime because the statutory punishment is “life imprisonment”. The case of Pana [2013] Court of Appeal relevantly stated:-
   • “We suggest that in all but the most exceptional case, 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” (My underlining)

Aggravating features to inflate starting point sentence

5. Then I will inflate the starting point sentence to 15 years, because of 6 very serious aggravating features namely – (i) age disparity (you were 45 years and the victim 11 years at the time of first offending, age difference of 34 years); (ii) very young and tender age of the victim (11 years old grade 4 student); (iii) abuse of position of trust (you were her step father – victim depend on you as her step father to provide for her livelihood, welfare and education); (iv) some form of premeditation in the commission of the offences (you would look for opportunities at home to make sexual approaches to the victim); (v) repetitive offending (4 times but over those years it had developed into a sexual bonding, because facts show her body started to react differently whenever you touched her or approach her or I should imply whenever you are around her – male and female bodies are like magnets when sexually stirred) and (vi) psychological harm, shame and state of “mental witch-hunt” on the victim for the rest of her life. Her virginity should be kept intact till after her wedding/marriage.

Mitigating factors

6. But then there are mitigating factors in your favour which will reduce the sentence. There are 3 mitigating factors namely: (i) first time offender with no previous conviction; (ii) early guilty plea and (iii) delay. For first time offender I will deduct 1 year (14). For second mitigating factor I will deduct 3 years (11) because early guilty plea brings 3 benefits – (a) saves court’s time, (b) shows you are remorseful and (c) saves the victim from the trauma of recounting what happened to her in court. And for the delay I will deduct 1 year (10), as it is breach of your constitutional right to fair hearing within a reasonable time. Matter was committed to High Court in 2017. However information was only filed in 2019. And trial only in 2023.

Conclusion and Orders

7. So I will sentence you to 10 years imprisonment, for the 2 counts of defilement. To make it clear it is 10 years imprisonment for each count of defilement to be served concurrently. If I say 20 years cumulative it would be unreasonably excessive. I do not need to consider the sentences for the 2 counts of sexual intercourse because whatever sentence I will impose will be less or more than 10 years and I will have any such sentence to run concurrent to the 10 years imprisonment for the 2 counts of defilement because the punishments all emanate from the same event(s) for which the defendant is charged. And if I should add (cumulative) whatever sentence I give for the 2 counts of sexual intercourse, then it will be unreasonably high. So it will not make any difference to the concurrent sentence I already gave for defilement. And I do not need to waste my time doing something that will not make any difference on the head sentence of 10 years. You are also entitled to deduction of any pre-trial custody time. The correctional authority will account for this reduction.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE