Regina v Haka [2013] SBHC 15; HCSI-CRC 195 of 2012 (22 February 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)
Criminal Jurisdiction

HCSI-CRC 195 of 2012

REGINA

v

ELIJAH HAKA

Date of Hearing: 21st February 2013.
Date of Judgment: 22nd February 2013.

Mr. A. Aulanga for the Crown.
Mr. M. Holara for the accused.

SENTENCE

1. You have pleaded guilty to one count of indecent assault contrary to section 141(1) of the Penal Code and two counts of defilement contrary to section 142(1)(a) of the Penal Code. You are here for sentence.
   
2. You have committed these offences on the same victim and you have committed them on the same night of 12th February 2012.
   
3. The offence of indecent assault carries a maximum sentence of five years while the offence of defilement carries a maximum sentence of life imprisonment where the victim is under 13 years of age. In this case, the victim was 10 years and 8 months old at the time of the offences while were about 20 years old then. The age gap was about 10 years.
   
4. A number of indecent assault cases have been considered by this court in the past. They include R v Rafita[1] (14 years), R v Tawaia[2] (2 years), R v Foa[3] (3 years), R v Tebounapa[4] (2 years) and R v Tahinao[5] (12 months). It is clear that cases involving young children or breaches of trust or trickery or threats of harm must attract harsher sentences than other types of indecent assault cases.
   
5. I have also considered sentences imposed by this court in the past for defilement offences. In R v Rasini[6], the accuseds were sentenced to imprisonment terms ranging from 4 months to 9 months. The victim was 12 years old at the time of the offences. In R v Kaboma[7], terms of imprisonment have been imposed on 4 accuseds in relation to defilement charges. The 4 accuseds were Allen Kaboma, Leslie Maesimae, Basil Malinga and Alfred Hepepaina. Allen Kaboma was charged with 3 counts of defilement of three girls, one under 13, another under 15 and the third also under 15. Leslie Maesimae was charged with defilement of a girl under 15 years. Basil Malinga was charged with the defilement of a girl under 13 years and Alfred Hepepaina was charged with 2 cases of defilement, one of a girl under 13 years and the other of a girl under 15 years. All have pleaded guilty to the charges against them. Their sentences ranged from 6 months to 2 years. The victims were under the ages of 13 and 15.
   
6. In Zale v Regina[8], the accused was convicted of 3 counts of defilement of a girl who had just turned 13 at the time. He was sentenced to 9 months on each count by the Magistrates Court but, on appeal to the High Court, each sentence was reduced to 3 months. In R v Rubekolo[9], the accused had pleaded guilty to defilement of a girl of 12 years old. He was given a suspended sentence of 4 months. In R v Usa[10], the accused was given a suspended sentence of 12 months imprisonment.
   
7. In considering the appropriate sentence to impose in your case, I have had regard to these ranges of sentences.
   
8. I have also taken into account the fact that you are 10 years older than the victim. I am satisfied that, despite the victim's willing participation, you knew that the victim was a child and yet you were bent on having sex with her, not once but twice. Apart from that, I find no aggravating features which would make this case one deserving of a greater punishment than those previously imposed by this court for the same offence committed in similar circumstances.
   
9. I have also considered your past clean criminal record. You have never been before the court before and that is a strong mitigating factor. Also, you are a young man with a future ahead of you. You have a desire to continue with your education at USP Center and I think you should be given the chance to do so.
   
10. Furthermore, it is clear from the facts that the victim may have already had some sexual experiences in the past. There is no evidence that she had received any injuries to her genital areas from these two sexual encounters. Moreover, she had willingly participated with you in the acts of sexual intercourse that night. You used no force against the victim and you hold no position of trust towards the victim.
    
11. I also take into account the fact that you and your relatives have paid customary compensation to the victim and her relatives in the sum of $10,000.00 and 5 shell money.
    
12. I have had regard to the aggravating features of this case as well as to sentences imposed in the past for similar cases. However, it is my view that there are very powerful mitigating features in this case as indicated above. In these circumstances, it is my view that the appropriate sentences in this case are 4 months imprisonment for the offence of indecent assault and 8 months imprisonment each for the two counts of defilement. I also feel that these sentences should be suspended in full for 12 months.
    
13. Accordingly, the sentences imposed in this case are:
    

Count 1	-	4 months imprisonment;
Count 2	-	8 months imprisonment; and,
Count 3	-	8 months imprisonment.

14. It is ordered that these sentences be suspended in full for 12 months.
    

THE COURT

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^[1] HCSI-CRC No. 63 of 2011.
^[2] HCSI-CRC No. 437 of 2009.
^[3] HCSI-CRC No. 256 of 2008
^[4] HCSI-CRC No. 033 of 1997.
^[5] HCSI-CRC No. 369 of 2004.
^[6] [1991] SBHC 127; HC-CRC 025 of 1990.
^[7] [1992] SBHC 69; HCSI-CRC 12 of 1992.
^[8] [2005] SBHC 54; HCSI-CRC 495 of 2004.
^[9] [2006] SBHC 122; HCSI-CRC 463 of 2004.
^[10] [2009] SBHC 8; HCSI-CRC 183 of 2007