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R v Sisa [2024] SBHC 80; HCSI-CRC 409 of 2023 (9 August 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 409 of 2023

REX

V

JAMES BOKO SISA

Date of Hearing: 1 August 2024
Date of Decision: 9 August 2024

Counsel; Ms Pellie and Ms Naqu for the Crown
Counsel; Mr Kwalai for the Defendant

CONVICTION AND SENTENCE FOR THE CHARGE OF RAPE

1. James Boko Sisa (“Sisa”) comes from Koilorua village, Small Ngella, Central Province. Jesmalyn Mana, Sisa’s 7 years old female child victim resides with her parents at Tulagi provincial town, Central Province. Mr Sisa is known to Jesmalyn as a frequent visitor to her family home at Tulagi.
2. Jesmalyn Mana complains that Sisa raped her on 3 separate occasions at Tulagi in the year 2022. Mr Sisa is charged for the rape of Jesmalyn on the 3 separate occasions in the year 2022. There are 3 separate counts of rape laid against Sisa in the further amended information filed on 29/7/2024, the day trial was to commence. First rape incident took place inside the bathroom behind the victim’s house. Second rape incident took place inside an old house at Tulagi. And the third rape incident took place underneath a Koilo tree beside the victim’s house at Tulagi.
3. Mr Sisa was arraigned on the 30/7/2024. He pleaded guilty to the 3 counts of rape contained in the further amended information. I convicted Sisa as charged premised on his guilty plea and summary of agreed facts. Now I have to determine the appropriate punishment. Rape is a serious offence, for it carries a maximum penalty of life imprisonment. However, I have power to impose a lesser sentence term.

Starting point sentence

4. The starting point sentence is not contested. It is 8 years according to Sinatau Court of Appeal 2023 - this offending being unlawful sexual intercourse with a child under 15 years. The victim Jesmalyn Mana was 7 years old.

Aggravating factors

5. I determined the following serious aggravating factors: -
   • (i) Young tender age of the victim – Jesmalyn is very young at the tender age of 7 years old. Sinatau emphasised that the actual age of the victim may be considered as an additional aggravating factor. That the aggravating effect on sentence will usually be greater the younger the child. This made perfect sense because the 2016 reform was made with the objective to protect women and girls from sexual abuse which was prevalent in Solomon Islands pre-2016 reform.
   • (ii) Age disparity – Sisa was 45 years old. Jesmalyn was 7 years old. Age difference of 38 years. As an older person whom the victim knew as a frequent visitor to her home – there is an expectation for Sisa to be responsible and accountable in protecting Jesmalyn from this type of offending (R v Ramaia [2021] SBHC 96).
   • (iii) Repetitive offending – Repetitive harm occasioned on the same person is a serious aggravation. Mr Sisa raped Jesmalyn on 3 separate occasions. Repeating as in here also shows the reckless attitude, behaviour and thoughts of an adult person like Sisa. Sisa had opportunity to repent from the repetitive sexual harm.
   • (iv) Psychological harm – Judicial notice needs to be taken of the long-term devastating effect on the victim of sexual offending, especially young victim as in this case. The psychological trauma cannot be ignored (R v Liva [2017] SBCA 20, Court of Appeal).
   • (v) Close proximity to the victim’s home – The offending took place within the vicinity or close proximity to the victim’s home. The victim’s home and it’s immediate surrounding/vicinity is a place where the victim should roam and play around with her safety and security assured. Instead Sisa turned the environment into a crime scene.
   • (vi) Physical injury/harm – Sisa raped his 7 years old victim through penial sexual intercourse on 3 separate occasions. It is hard to imagine how a small girl of 7 years old could subsist such sexual rape abuse. An adult like Sisa to have penial sexual intercourse with a 7 years old female victim would undoubtedly cause serious vaginal injury. There is no doubt her virginity and sexual purity were crushed. The very act of rape is physical violation of a victim and physical harm is inherent in it – (R v Liufirara [2023] SBCA 10; SICOA-CRAC 30 OF 2022 (28 April 2023).
   • (vii) Position of trust breached – Sisa was known to the victim because he was a frequent visitor to her family home at Tulagi. Sisa was a family friend and visitor to the victim’s Tulagi family household. Sisa capitalised on that relationship and sexually abused Jesmalyn, a child, who undoubtedly had trust and dependant on him as a family friend. Sisa breached his position of trust when he turned on Jesmalyn and raped her to satisfy his sexual gratification.
   • (viii) Isolated locations and pre-planning - I will not discuss these two factors suffice to say the aggravating factors here far outweigh the mitigating factors.
6. For 7 of the above serious aggravating factors combined, I will give an uplift sentence of 14 years (2 years for each aggravating factor). Increase due to serious aggravating factors should be in years rather than in weeks and months (Bade, Court of Appeal 2023). Additionally, the maximum penalty here is life imprisonment. A substantial increase in aggravation is justified. I note that this is a case where the aggravation far outweigh the mitigation. I will impose a 22 years total head sentence before mitigation.

Mitigating factors

7. Then I will make deductions in respect of fewer mitigating factors: -
   • (i) Early guilty plea – Mr Sisa entered an early guilty plea to the amended information at the earliest opportunity. The amended information was filed as a result of ongoing negotiations since the plea was taken on the original information. I will deduct 30 percent, which comes to 6.6 years, rounded off to 7 years.
   • (ii) First time offender with no previous conviction. I will deduct 3 years.
   • (iii) Rehabilitation – Defendant is 45 years. He still has prospect to rehabilitate and come out a reformed person after release from prison. I will deduct 2 years. That comes to 12 years. Taking that away from 22 will come to 10 years.

Concurrent sentences for the 3 counts

8. I will impose 10 years sentence for count 1. For count 2 I will increase 1 more year (11 years) because second offending on the same person is more harmful than the first. And increase one more year for count 3 (12 years), because the third time a harm is caused to the same person is more serious and harmful than the first and the second.
9. However, I will make the sentences for count 1 and count 2 to run concurrently with the sentence for count 3. That means Sisa will only be serving a custodial sentence term of 12 years. If I make the 3 sentence terms for the 3 counts to run consecutive it will result in a crushing effect on Mr. Sisa. The crushing effect will be 33 years imprisonment.

Conclusion and Orders

10. Sexual abuse and rape of very tender aged young girls in the age range of 2 - 7 years is a very serious crime. These are the target groups that Parliament intended to protect from sexual abuse through the 2016 legislative reform. Courts too must sing along with the intention to protect the young and the vulnerable from sexual abuse. For that reason, a sentence of 12 years concurrent for 3 separate counts is justifiable, not only to the offender, but to act as deterrence to the general public.
11. I will convict Mr Sisa for the 3 counts of rape. I will sentence Mr Sisa to 12 years custodial sentence imprisonment. The sentence term will begin to run from December 2022, when Sisa was remanded.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE