Regina v Osiri [2018] SBHC 37; HCSI-CRC 338 of 2017 (12 March 2018)

REGINA

-V-

SIOSI OSIRI

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

Criminal Case No. 338 of 2017

Date of Hearing: 6^th February 2018
Date of Judgment: 12^th March 2018

Florence Joel/Rizzu E for Prosecution
Hou D. for the Defendant

SENTENCE

Maina PJ:

Introduction
An amended information filed by the Director of Public Prosecution dated 27^th February 2018, Siosi Osiri ("the accused") was charged with one count of committing an offence by sexual intercourse with a child under 15 years of age, contrary to Section 139 (1) (b) of the Penal Code. And the accused Siosi Osiri pleaded guilty upon own plea of the charge.

This provision is introduced or inserted in Penal Code (principal Act) by the Penal Code (Amendment) (Sexual Offences) Act 2016. It appears that this is the first time an accused is brought to court under this new provision in the Penal Code.

Upon entering the plea of guilty, I find Siosi Osiri guilty on the charge of sexual intercourse with a child under 15 years of age, contrary to Section 139 (1) (b) of the Penal Code and accordingly convict him on the charge.

Crown and Defence made submissions for the sentence and Crown submitted that the Court of Appeal had set a starting point for the offence of defilement and is 8 years.

But the Public Solicitor Hou submits that 8 years was made when the offence was under the old provision Section 142 (1) of the Penal Code. He calls on the court to formulate of a starting point in sentencing under the new offence in the Section 139 (1) (b) of the Penal Code which provide for the maximum of 15 years.

He argued the starting point of 8 years was set by the Court of Appeal under the old provision Section 142 (1) of the Penal Code and sentence was an issue in Pana v Regina as it then stood. This 8 years cannot be applied under new provision under Section 139 (1) (b) of the Penal Code as the maximum sentence under old provision in Section 142 (1) was liable to imprisonment for life. However, the latter in Section 139 (1) (b) of the Penal Code is only 15 years.

Clearly what seems to exist is the 8 years has been the starting point in sentence for the offence under the old provision Section 142 (1) of the Penal Code - the Defilement of girl under thirteen years of age with liable to imprisonment for life. A provision now incorporated or preserved by enabling Act (Penal Code (Amendment) (Sexual Offences) Act 2016 in Section 139 (1) (a) of the Penal Code. The separation enable the differences of what may be the starting point for the offence under Section 139 (1) (b) of the Penal Code.

And I accept the view of the defence to set a starting point for the offence under this new provision noting as usual that each case must depend on its own facts.

It is a trite law even so binding on members of the judiciary in this jurisdiction; the principle is that only in the worst cases is a maximum penalty imposed. This principle of not imposing maximum sentences or near maximum sentence in the first offender and/ or in cases other than the most serious or worse cases is well established in this jurisdiction and the other common law jurisdictions.

It is notable the worst type is where accused consistently breach the and constantly coming back or appearing before the court on particular charge, circumstances surrounding of the particular offence charged are very aggravating and others.

For the purpose of guidelines or sentencing policy for the offence of defilement, the court of appeal has set a starting point in sentencing of defilement of girl under 13. In Pana v Regina [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013) the court set the starting point to 8 years imprisonment.

In Mulele v Director of Public Prosecutions; Poini v Director of Public Prosecutions [1986] SBCA 6; [1985-1986] SILR 145 (14 January 1986) the court laid down the principle or sentencing policy for future guidance and stated and that each case must depend on its own facts, but matters to be considered among others are disparity of age, abuse of a position of trust, subsequent pregnancy and the character of the girl are essentially be among the factor to be considered in the sentence on such sexual offences

The Appeal Court cases are specific or clear on what were considered under the old provision in Section 142 (1) of the Penal Code and thereby sets the starting point of 8 years and with the principle or sentencing policy for future guidance. Such is and surely are for guidance to form one for the new offence and revised sentence under section 139 (1) (b) of the Penal Code offence. A charge against this accused Siosi Osiri.

Mitigation and Aggravating Features

For the accused's favour there is no previous conviction and is still at 27 years of age, a young man and bread winner for his family and cares for his young brother and sister in school. Though these are personal matters for the accused are to be considered in the sentence.

What seem to be the aggravating features of this case is basically the difference of ages between the victim (14 years) and accused (25 years). Accused’s uncle explained to him that the girl was a small girl but the accused took the girl away and hide her from her family.

It is well accepted in the court as show in the cases earlier refereed to with unlawful intercourse with girls under the old provision in section 142 (1) of the Penal Code is the differences of the ages between the parties. Where the offender himself is only few years old than the girl concerned, the usual sentence is less years. Here the age difference is 11 years as the accused was 25 years and girl was 14 years (at the time of offending) not necessarily with great differences or both were at young ages in what may be the context of Solomon Islands.

The accused claimed to earlier had sexual intercourse this girl and they are planning to marry.

Whether the girl had a test of sexual intercourse which seemly not for her age, the law intended that girls under 15 years should be protected from men and herself. It should be later at the right time or presumed age for sex in law.

Accused has admitted the offence with a willing girl of 14 years who previously had sex or test sexual intercourse, the desire, feelings, niceness or whatever you may describe that, a matter for consideration in the sentence.

Generally the court is prepared to give substantial effect to personal mitigating factors in the sentence if it is justified on the fact of the offence.

As noted earlier, sentences in excess of starting point or normal sentence is to be upheld and in addition to the different ages between the parties and or the offence is aggravated by the existing of a relationship between them casting some obligation of care on the offender.

The penalty upon conviction for defilement under Section 139 (1) (b) of the Penal code is maximum of 15 years imprisonment. And as I have alluded earlier this maximum is for most serious of cases of defilement. The fact that by the amended of Section 142 (1) of the Penal Code by the enabling Act ((Penal Code (Amendment) (Sexual Offences) Act 2016) shows the sexual intercourse between 13 years and 15 years is less serious than girls under 13 years and that always reflect in the new provision under Section 139 (1) (a) of the Penal Code, the so serious is life imprisonment for the most severe punishment under Solomon Islands law.

With the distinct policy fixed by the Court of Appeal in Pana and Mulele cases and for parity sentences we may oblige to fix a starting point that would base on sentences approved in appropriate cases and the normal sentencing bracket seem to be between 4 and 8 years. It is all important that the judges and magistrates to impose parity sentences on the sexual offence cases as they are becoming or the regular charges with the courts.

On the basis and taking into account the guilty plea and no previous conviction for the accused but what are likely aggravating factors seem not holding much weight. The fact the parties are or this case the age difference is 11 years as the accused was 25 years and girl was 14 years (at the time of offending) not necessarily with great differences or both were at young ages, considering if the age of the offender is 40 years and above.

The victim had the test of sexual intercourse and willingly accompanied the accused as described by the crown as hided with the accused.

It is my view that for a normal case of defilement under the new provision in Section 139 (1) (b) of the Penal Code, the appropriate starting point for sentence be five years and I adopt for the case. The accused pleaded guilty at the first instance and being a first offender will have impact on any sentence for him.

Orders of the Court:

1. Impose sentence of four years imprisonment.
2. The period spent in custody is to be taken into account.
   

THE COURT

Justice Leonard R Maina
Puisne Judge